McCutcheon vs. FEC: 9 Arguments

MANY WILL HAVE learned by now that oral arguments for McCutcheon vs. FEC took place on Tuesday, but fewer will have fully digested their contents.  There are resources to help with this, most notably the award-winning SCOTUSblog, which has graciously posted its “Plain English” interpretation of the day’s debates. Here are the court’s arguments further filtered into bite-size pieces (roughly 30 words each), and therefore extra conducive to digestion.  Note the dialogue that Chief Justice Roberts has with himself.

AYE denotes arguments in favor of the plaintiff’s position that aggregate limits are unconstitutional. NAY denotes the opposite. Finally, “the $3.5 million scenario” I refer to below alludes to a popular argument posed by advocates of aggregate limits.  The argument goes something like this: biennial aggregate limits – currently set at $123,200 total for both candidate and other committees – effectively limits the number of candidates and PACs to which any given donor can give.  If aggregate limits were abandoned, donors would be free to max out to every member of the House and Senate, every political party, etc., which would allow up to $3.5 million in donations.  Implied in the exposition of this scenario is the apparently unwelcome idea that those who can afford to part with $3.5 million – to say nothing of those who have $3.5 million – will possess extraordinary power in an electoral system devoid of aggregate limits.

AYE: The $3.5 million scenario (see above) would have a negligible effect on overall political spending. Even with aggregate limits in place, $1.5 billion was spent in 2010 alone – Scalia

NAY: $3.5 million goes into $1.5 billion 428 times. So in Scalia’s scenario, the country would essentially be run by less than 500 rich people – Solicitor General Don Verrilli

AYE: The $3.5 million scenario is implausible given the number of regulations currently within the FEC framework that restrict earmarking and proliferation – Erin Murphy, attorney for the plaintiff, Shaun McCutcheon.

NAY: Aggregate limits foster democratic participation because they force candidates to seek support from many donors (as opposed to a few rich donors) – Ginsburg

AYE: Aggregate limits contribute to an inconsistency in campaign finance law, because donors face no limits elsewhere, notably in how much they can fund their own PAC – Scalia

NAY: Abolishing aggregate limits would allow donors to effectively shirk individual limits, which are not being tested by the court – Roberts

AYE: Aggregate limits impose an arbitrary restriction on the number of candidates a single donor can support. Currently that limit is nine. To say that the tenth contribution would have a corrupting influence is to make a groundless argument – Roberts

AYE: Along these same lines, aggregate limits force donors to make an undesirable choice between one candidate and another – Roberts

NAY: The absence of aggregate limits would create super donors who will then be owed “special treatment” by political parties – Kagan

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