Antonin Scalia, Election Law, Elena Kagan, Free Speech, Money, Politics, Ruth Bader Ginsburg, Samuel Alito, SCOTUS, Supreme Court

McCutcheon Oral Argument: Or, Justice Scalia Explains How $3.5 Million Isn’t That Much Money

Supreme Court arguments are off and running, and the Supremes wasted no time in getting to the fun stuff. In this instance, it’s McCutcheon v. FEC, the case billed as Citizens United II: Electric Boogaloo. The conservative wing of the Court is expected to side with McCutcheon in its continuing war to make American elections safe for multi-millionaires.

Anyway, the oral argument was marked by the usual humorous sniping amongst the justices and lots of fun exchanges where counsel and the conservative justices worked overtime to subordinate reality to ideology. Up to and including Justice Scalia arguing that $3.5 million isn’t that much money for one individual to spend on an election.

Here are 3 immediate, largely stream-of-consciousness thoughts based on reading the transcript (available at the end of the post) coming out of this oral argument:

1. The oral argument revealed how incredibly dumb the legal landscape becomes under the logic of Citizens United.

If you haven’t been following McCutcheon, it’s basically the next logical step in the incremental dismantling of the campaign financing laws that the country embraced for decades. Rather than seeking the outright elimination of campaign finance laws, the plaintiff, Shaun McCutcheon, is only challenging the rule that bars individuals from giving more than a certain aggregate amount in a two-year cycle. For example, the limits on an individual giving no more than $2,600 to a specific candidate in a given election will remain in place regardless of the decision, but if the conservatives prevail, an individual could give $2,600 donations to thousands of Tea Party candidates every election. For freedom. The current aggregate limits are:

• $48,600 to candidates
• $74,600 to political parties and PACs
• $48,600 to non-national party committees (a sub-limit to the overall party limit)
• $123,200 overall

The genius of the conservative strategy in dismantling campaign finance laws is the slow burn. By first eliminating restrictions on SuperPACs, the appellants were free to argue that current aggregation laws couldn’t possibly be about checking corruption because a loophole already exists that would be way more corrupt. Never mind that the loophole in question was only created by the last ill-conceived challenge to campaign finance laws.

JUSTICE SCALIA: That’s fine. They’re regulated. That’s the law, but the question says –­ what the question is directed at, given that that’s the law, isn’t the consequence of — of this particular provision to sap the vitality of political parties and to encourage — what should I say — you know, drive-by PACs for each election? Isn’t that the consequence?

GENERAL VERRILLI: So I think the answer is we don’t know one way or another whether that’s the consequence, but we -­

JUSTICE SCALIA: I think we do.

Justice Scalia explained that the aggregate limits were bad because they encouraged more SuperPAC spending (now that SuperPACs can spend right up until the day of the election, which they couldn’t do prior to Citizens United). At least he’s willing to admit that SuperPACs are corrupting and out of control just long enough to cynically use it to demolish more protections on the sanctity of the electoral process. Hooray?

JUSTICE SCALIA: General Verrilli, it seems to me — it seems to me fanciful to think that the sense of gratitude that an individual Senator or Congressman is going to feel because of a substantial contribution to the Republican National Committee or Democratic National Committee is any greater than the sense of gratitude that that Senator or Congressman will feel to a PAC which is spending enormous amount of money in his district or in his State for his election. I mean, it seems to me the latter is much more identifiable, and there is nothing in the law that excludes that. So apparently that’s not too much of a risk.

GENERAL VERRILLI: Well, Justice Scalia, I’m not here to debate the question of whether the Court’s jurisprudence is correct with respect to the risks of corruption from independent expenditures.

JUSTICE SCALIA: It is what it is, though.

I had a friend who once mused that, working in Biglaw, she’d discovered that whenever someone employed the phrase “it is what it is,” you can take the phrase and replace it with, “well, I’m an asshole” and the sentence works just as well. For example, “I’m going home, but you have to stay here all night coding documents, but ‘it is what it is.'” This story is relevant to this situation.

Conservatives recognize that abolishing all limits on campaign finance would be a bridge too far at this point, because the risk of corruption would be obvious. But, just like Scalia is doing in these exchanges, sit tight and 3-4 years after the aggregate limits are abolished, when all of the risks that Verrilli outlines of donors using the new rules to circumvent the individual caps come to pass, Justice Scalia will be right there explaining how the individual caps must be demolished because, “Look, people can already give all they want through PACs that aggregate now, so isn’t it more direct just to let them write one $10 million check directly to a candidate?”

Constitutional Accountability Center President Doug Kendall put it well:

“The Court struggled with McCutcheon,” Doug Kendall added, “because its ruling in Citizens United is in tension with prior rulings upholding contribution limits. But as Justice Kagan explained, the way to solve that tension is to limit Citizens United, not overturn decades-old rulings that protect our politcal process.”

Well, yeah, if you wanted to approach this logically.

2. Hypotheticals are really stupid until they get stupider.

The liberals on the Court joined Verrilli in arguing that, without aggregate limits, someone could spend up to the limit on one battlefield candidate, then give up to the limit to a series of PACs that are obviously giving the lion’s share of their donations to that candidate, then give to the limit to all the state party committees that will transfer funds to that battlefield candidate, and effectively give $3.6 million (constantly rephrased as 3.5 or 3-point-whatever throughout the transcript). Here’s an exchange between Justice Kagan and newcomer Erin Murphy.

JUSTICE KAGAN: This candidate knows all of his $100,000 donors. There are not all that many of them. He can keep them all in his head in a mental Rolodex.

MS. MURPHY: But they’re not actually donors to him at that point. They’re contributing to a PAC that, in your hypothetical, is contributing to multiple different candidates and -­

JUSTICE KAGAN: Five of the most contested Senate races. So a person gives $100,000 to each of five candidates who if they win become the five senators that are most attuned to donors. And he knows who’s giving him $100,000, each of those five senators who gets in on the strength of these contributions that are 20 times what the individual limits allow.

It’s probably never going to work out this cleanly, but the logic of the hypothetical appears sound. But the response to these hypotheticals was to ridicule them through nitpickery:

JUSTICE KAGAN: A candidate can transfer a maximum of $2600 to another candidate per election.

MS. MURPHY: A candidate can transfer $2,000 to a candidate per election. And that’s a contribution –­

JUSTICE KAGAN: I stand corrected on the basis of $600.

Take that you pinko commie!

Justice Alito also just refused to accept the hypothetical:

JUSTICE ALITO: Well, I may have an overly suspicious mind, but I don’t know. If I saw 100 PACs rise up and all of them said exactly the same thing, we’re going to make contributions to the five most contested Senate — the candidates in the five most contested Senate races, I would be suspicious. And maybe the FEC would also be suspicious that they didn’t just all spring up independently.

It’s not like all these groups publish lists of their top targeted races and they’re always the same ones or anything. But Alito kept fighting:

JUSTICE ALITO: What troubles me about your — what troubles me about your argument, General Verrilli, and about the district court’s opinion is that what I see are wild hypotheticals that are not obviously plausible or — and lack, certainly lack any empirical support. Now, you’ve — you’ve chosen to use the same hypothetical the district court used about the $3.5 million contribution that would be — that could be given by a coordinate — which involves all of the House candidates and all of the Senate candidates in a particular year getting together with all of the — all of the parties’ national party committees, plus all of the State party committees, and then — and that’s how you get up to the $3.5 million figure; isn’t that right?


JUSTICE ALITO: Now, how — how realistic is that? How realistic is it that all of the State party committees, for example, are going to get money and they’re all going to transfer it to one candidate? For 49 of them, it’s going to be a candidate who is not in their own State. And there are virtually no instances of State party committees contributing to candidates from another State.

As it turns out, this “crazy” hypothetical is entirely accurate:

In fact, state party committees in the past have transferred such funds to other state party committees with the intent of helping the candidate who solicited the original check to the joint fundraising committee.

In the 2012 election, GOP presidential nominee Mitt Romney’s campaign used a strikingly similar scheme, albeit restricted by the aggregate limits. Romney Victory, the joint fundraising committee for his campaign, raised money for Republican Party committees in four non-competitive states — Idaho, Massachusetts, Oklahoma and Vermont — which were then able to make unlimited transfers to state GOP committees in 10 swing states.

This scheme provided the opportunity for a Republican donor’s money to sidestep the base limit on giving to party committees: A donor could write a check of $40,000, which the joint committee would divide up evenly among four non-competitive state party committees, in accordance with the base limit of $10,000 per person per state party committee. Since party committees can make unlimited transfers among themselves, all four of those committees could send their share onto one swing-state committee, meaning the donor’s full $40,000 contribution would end up boosting the Romney campaign in a key battleground.

Yeah, but facts have no place in an ideological argument. Maybe the conservatives can counter this dumb hypothetical:

JUSTICE ALITO: I just don’t understand that. You mean at the time when the person sends the money to this hypothetical joint fundraising committee there is a corruption problem immediately, even though — what if they just took the money and they burned it? That would be a corruption problem there?

GENERAL VERRILLI: Well, they’re not — they are not going to burn it.



3. Donations constitute free speech… why?

The whole discussion highlights just how right the original Buckley decision was. It’s taken as a given throughout the argument that the ability to give someone money is “free speech” and the justices quibble over whether there’s a more important balancing right. But the First Amendment’s protection of free speech is directed at protecting an individual’s right to express his or her opinion, not their right to facilitate someone else expressing an opinion. The latter is a ludicrous construct hefted onto the Amendment by cynical jurists. Ironically, by cynical jurists claiming originalist beliefs, even though the concept of a funded election was unheard of to the Founders, who considered campaigning “undignified,” especially campaigning for popular votes.

But instead, the whole Court accepts this bizarre quirk of recent jurisprudence as a given:

JUSTICE GINSBURG: Ms. Murphy, on the “everyone else,” can you give us an idea of whose expression is at stake? I mean, most people couldn’t come even near the limit. So what percentage — is there any information on what percentage of all contributors are able to contribute over the aggregate?

MS. MURPHY: I don’t have a percentage on how many are able. I mean, we aren’t talking about a large number of individuals. We certainly are talking about more individuals than whose First Amendment rights were implicated by the provision at issue in Davis, for example.

JUSTICE SCALIA: I assume that a law that only — only prohibits the speech of 2 percent of the country is okay.

MS. MURPHY: Absolutely not.

JUSTICE SCALIA: Oh, it isn’t?

Oh, I see what you did there Antonin! But it does reflect the warped view one must accept when money is correlated with speech. When Scalia worries about “a law that only prohibits the speech of 2 percent of the country” (even if it is not a prohibition but a small limit), he’s conspicuously overlooking the fact that 98 percent of the country can never even access the “speech” he thinks must be protected.

But hey, we shouldn’t have laws stifling speech when the private market can stifle so much more speech. And note exactly where he thinks the reasonable line is:

When you add all that — add — when you add all that up, I don’t think 3.5 million is a heck of a lot of money -­

Sure. It is, though, probably more than you’re even worth.

After all, if democracy was meant for the poor, the Founders wouldn’t have limited the vote to wealthy landowners.

The full transcript is available on the next page….

(hidden for your protection)

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