‘Citizens United II’ could open floodgates

The Supreme Court may be poised to demolish another set of campaign finance restrictions, as the justices weigh whether to strike down decades-old limits on campaign giving.

The case, known as McCutcheon v. Federal Election Commission, comes nearly four years after the High Court’s controversial Citizen’s United ruling, which helped bring in unlimited donations to outside groups.

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Experts say the stakes could be even higher in the McCutcheon case, set for oral arguments on Tuesday.

At issue in the case are aggregate contribution limits – the maximum amount that a donor can give to federal candidates and political party committees throughout the course of a two-year election cycle.

Dubbed “Citizens United II” by watchdogs, they worry without the limits, donors’ influence will only grow.

“If the court strikes down these limits they will leave the nation unable to protect itself from the wholesale corruption of our officeholders and of government decisions,” said Fred Wertheimer, president of Democracy 21, which lobbies for stronger campaign finance laws.

Now set at just over $123,200, the limits were enacted by Congress in the early 1970s and upheld by the court’s 1976 decision in a case dubbed Buckley v. Valeo.

“Congress was surely entitled to conclude… that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions,” the court found.

The Supreme Court has taken up numerous campaign finance cases since then, but has declined until now to revisit the Buckley finding.

The justices will consider the case of Shaun McCutcheon, an Alabama businessman and GOP backer who is challenging the limits as unconstitutional. His central argument is simple: limiting donations hampers contributors’ free speech and their participation in the political system.

“Contributing to candidates is protected by the First Amendment,” said the Bopp Law Firm’s James Bopp, lead counsel for the Republican National Committee, which has partnered with McCutcheon on the case to oppose the aggregate limit.

“When you have a law that prevents you from contributing to candidates that you want to, which this law does, it is prohibiting speech, which is what a contribution is,” he said.

Senate Minority Leader Mitch McConnell (R-Ky.) has filed a "friend of the court" brief in the case and, through his attorney, will present to the court his views for lifting the restrictions on campaign contributions.

Parties and their candidates stand to benefit if the cap is struck down by the high court.

Since the Citizens United decision in 2010, money has flowed to super-PACs and non-profit groups that operate outside of the party system. Unlimited donations can be made to both types of groups and in the case of the non-profit world, without disclosure to the public on who’s giving.

As of now, donors have a strict limit on what they can give to parties, political action committees and candidates over two years — with no more than $48,600 to all candidates and $74,600 to all PACs and parties.

If those limits are lifted, parties would be better positioned to compete with super-PACs.

“There would be more money contributed to the RNC, the congressional committee, the Senate Committee. There would be more money contributed to candidates,” Bopp said. “People should be able to give more to the more transparent, accountable entity, which is a candidate or a party. … You can't vote against a super-PAC.”

Brad Smith, chairman of the Center for Competitive Politics, said parties should also be able to partake in the unlimited money going to the outside groups.

“I don't see why parties and candidates should operate under some imposed handicap. They should be able to compete for those dollars,” said Smith, a former FEC chairman. “We think it would help flow power back to the parties and the candidates.”

But watchdogs argue lifting the aggregate cap on campaign contributions would only empower an elite set of donors.

A study by Public Campaign found only 1,219 people reached or came near giving the maximum amount of money for the 2012 election cycle. Those donors would likely be asked to give more and would do so, expanding their influence with candidates and parties.

Without aggregate limits, individuals could give millions of dollars in a given cycle, provided they spread the money around to a large number of House and Senate races, as well as party committees.

Warnings from McCutcheon’s opponents center on FEC rules that allow numerous federal candidates and political committees to set up “joint fundraising committees.” Through them, the candidates and committees can solicit contributions and decide amongst themselves how to divvy up the proceeds.

“This means the donors can be solicited by the candidates for quite large sums and can write one check to the joint fundraising committee,” former FEC Chairman Trevor Potter said.

“The only thing that prevented these checks from being larger were the federal aggregate contribution limits,” said Potter, who served as comedian Stephen Colbert's election lawyer during the 2012 campaign and general counsel to Sen. John McCain (R-Ariz.) during his 2000 and 2008 presidential campaigns.

Wertheimer said party leaders on both sides of the aisle could target a few well-heeled donors to fund their candidates, disenfranchising much of the electorate.

“This is about establishing a new system where Speaker Boehner or Leader Pelosi can go to an individual and ask for $2.5 million for all 435 of their candidates. That’s not healthy for America,” Wertheimer said.