Justices Poised to Rule on Citizens United 2

The Supreme Court
Chief Justice of the Supreme Court John Roberts and Justice Samuel Alito on the front steps of the Supreme Court in Washington February 16, 2006. Jason Reed/Reuters

Last year, the Supreme Court ruled on a case involving an Alabama county that wanted to see key sections of the Voting Rights Act eliminated. Shelby County mostly got its wish. Southern states no longer have to have their voting rules vetted by the federal government.

Now, an electrical engineer and Republican activist--Shaun McCutcheon, also from Alabama--has a case before the high court that threatens to upend the current status quo on campaign finance.

Due any day now, the court's ruling in McCutcheon v. Federal Election Commission could overturn a nearly 40-year-old law that limits what individuals give to campaigns and what they can give in total. Politicians and activists are watching closely because in 2010 the Roberts court overturned a century's worth of law with its Citizens United ruling that allowed unlimited contributions and contributions by corporations to certain kinds of political committees.

The ruling was decried by Democrats and hailed by most Republicans and led to an arms race in campaign spending--one that, ironically, the Democrats joined and have done well at. Last year, the three biggest Democratic super congressional election PACs raised over $22 million— four times more than the total raised by their five GOP rivals

Now the court is dealing with a somewhat different question: contributions directly to campaigns and parties rather than those mysterious groups with cheerful names. (Paid for by "Americans for Apple Pie.")

Under current law, individuals can give a total $48,000 to federal candidates but no more than $2600 to any single one, with an overall donation limit of $123,200 to candidates, parties and political action committees combined.

McCutcheon is arguing that the aggregate limit is arbitrary and unnecessary. He is asking the court to rule on why it is okay to give money to 18 candidates but not to the 28 he sought to give money too. As a cute touch, McCutcheon sought to give a heavily symbolic $1776 to candidates.

If you want to know how the parties are lining up on this, look at the myriad amicus briefs being filed to the Supreme Court. Senate Minority Mitch McConnell, the Republican Senatorial Campaign Committee and a slew of conservative and tea party groups are backing McCutcheon's efforts to scuttle the campaign limits. Meanwhile, Democrats and liberal groups have urged the court to uphold the current law.

The smart betting is that the court will get rid of the aggregate limits. If that's the case, the wealthy could give something closer to $3.6 million to candidates, parties and political action committees. That's not in the same league as the oil billionaire Koch brothers or the casino magnate Sheldon Adelson who have lavishly financed conservative causes,but it's still a substantial change in the law --one that would allow plain old millionaires to up their game.

The justices could rule that the government interest in campaign finance limits wouldn't be overturned if donors could give relatively modest amounts to many candidates.

Democrats and liberals fear the court could use the case to strike down all limits on donating, getting rid of not only the aggregate caps but the individual ones too. Wanna give a million to 100 candidates? Be my guest.

If all limits were removed, we'd enter a radically new era in American politics. That outcome seems much less likely but still not impossible, although few predicted the court would be as aggressive as it was in overturning the limits on company and political action group donations in the Citizens United case.

It's hard to predict the fallout for the parties if the court limits itself to chucking the aggregate limits. Democrats have raised money aggressively in the post Citizens United era and they could probably compete well if aggregate limits get thrown out, even as they fight to keep the current law intact.

And some observers have argued that the removing the limits would be good for democracy, allowing more money to go to parties and less to shadowy outside groups. That might be good because it would encourage moderation, cohesion and less gridlock in Washington.

That could be wishful thinking. We'll know soon enough.