By Joan Biskupic, Reuters
The last time the U.S. Supreme Court heard a major campaign finance dispute, then-Solicitor General Elena Kagan stood at the lectern making the government’s case to the justices. On Tuesday she was on the bench, nearly as forceful, her sharp questions setting the tone for a defense of limits on political contributions and drawing caustic retorts from opposing justices.
Kagan, who argued the groundbreaking Citizens United case in September 2009 and then joined the nine-member court in August 2010, departed from her usual practice of waiting to jump into the give-and-take. Within the first five minutes of the hour-long session she began firing off worst-case scenarios at lawyers representing the latest challengers to federal campaign finance law.
The newest and youngest justice, Kagan, one of the court’s four liberals, has been heard largely in her strategic questioning on the bench, notable in the 2012 healthcare dispute, and in her fiery dissents. With the five conservatives often controlling key cases, she is not writing for the majority. But there are likely to be many chapters ahead. She is only 53, and when her predecessor John Paul Stevens stepped down in 2010, he was 90.
The challengers in Tuesday’s case, Alabama businessman Shaun McCutcheon and the Republican National Committee, contend that federal limits on the total contributions a person can make in a two-year election cycle violate political speech rights guaranteed by the First Amendment of the U.S. Constitution.
In her questioning, Kagan raised the specter of an individual donor who stays within the base $5,000 limit for a Political Action Committee (PAC) but then – presuming the aggregate limits are lifted – contributes to 100 PACs. She theorized that money could be transferred to U.S. Senate candidates who would know of the original contributions and feel beholden to the contributors.
Under another scenario, she said, an individual could stay within base limits on contributions to candidates, parties and committees but – if facing no overall cap – give a total $3.5 million. “Having written a check for 3.5-or-so million dollars … are you suggesting that that party and the members of that party are not going to owe me anything, that I won’t get any special treatment?”
Such questions evoked derision at times from Justices Antonin Scalia and Samuel Alito, the latter referring to “wild hypotheticals that are not obviously plausible.” Other conservative justices responded with interest.
Kagan’s queries drew attention from key Justice Anthony Kennedy, raised some concerns from Chief Justice John Roberts, and laid the groundwork for arguments from the lectern by her successor in President Barack Obama’s administration, Solicitor General Donald Verrilli.
The defense of limits put forward by Kagan and other liberal justices, as well as the ambivalence voiced by conservatives Kennedy and Roberts, suggested a majority would not use this case to dramatically alter campaign finance regulation as the 2010 decision did in Citizens United v. Federal Election Commission.
That 5-4 ruling, in which conservatives emphasized the rights of corporations, brought a deluge of new money to political campaigns and prompted immediate and enduring partisan complaint. Just days after the decision, Democrat Obama, in his annual State of the Union speech, with six of the nine justices in attendance, declared that the ruling reversed a century of precedent and warned it would “open the floodgates for special interests” to spend on U.S. elections.
No majority consensus emerged during the argument, so it would be difficult to gauge Kagan’s influence or how the justices might ultimately resolve the case. A decision is expected before the term ends next June.
Questions and Answers
Tuesday’s case drew intense political interest, including the filing of about 20 “friend of the court” briefs. The case, McCutcheon v. Federal Election Commission, tests the constitutionality of a different section of campaign finance regulation from Citizens United.
The disputed section limits the aggregate amounts that a person can contribute in a two-year election cycle to candidates, political party committees and PACS. The Supreme Court has allowed government more latitude to enact such limits on contributions – as opposed to limits on independent spending on campaign activities – because contributions involve money that goes directly to a candidate or committee and could more likely lead to quid pro quo corruption or the appearance of corruption.
Base limits, such as the $2,600 for a candidate, are not at issue in McCutcheon. Rather it’s the aggregate cap of $48,600 on what an individual may give overall to federal candidates and the $74,000 that an individual may give to political party committees and PACs.
Erin Murphy, the attorney representing McCutcheon and the Republican National Committee before the justices, said the overall limits were unnecessary to fight any appearance of corruption and impinge on First Amendment rights.
As she has previously over the past two years, Kagan used her questions to lawyers to strategically telegraph arguments to her colleagues. When Kagan challenged Murphy with multi-million-dollar contribution scenarios, Kennedy immediately picked up the thread to question Murphy – and also question Kagan’s assertions.Alito declared his suspicion of the line of hypotheticals Kagan raised. As Kagan, who sits to his left, faced him, Alito asked Solicitor General Verrilli, “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?”
Justice Kennedy, who wrote the Citizens United decision, challenged Verrilli about the underpinning of the court’s 1976 Buckley v. Valeo ruling that gave government more leeway to put limits on contributions compared to expenditures.
Verrilli said Congress could always write a new law, if it chose, changing the contribution limits.
That prompted Kagan to interject, “And General, I suppose that if this court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law.” That would mean reversing Citizens United. Said Verrilli, “Far be it from me to suggest that you don’t, your honor.”