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Is This Supreme Court Case the Next ‘Citizens United’?


Three years ago, the Supreme Court reshaped how campaigns are funded with its Citizens United decision, which ruled that restricting political donations by corporations, association and labor unions infringed on these groups’ freedom of speech.

What followed, in 2012, was the most expensive election cycle in American history.

Watch Big Sky, Big Money, FRONTLINE’s investigation into how Citizens United changed political campaigns in America.

Now a new case, McCutcheon v. FEC, to be argued on Tuesday before the Supreme Court, aims to further challenge campaign contributions, this time arguing that the cap on aggregate contribution limits for donors is unconstitutional.

Currently, the maximum total contribution that a single donor can make to parties, candidates and PACs during a two-year federal election cycle is $123,200.

But Shaun McCutcheon, a major Republican donor from Alabama, is arguing — with the help of the Republican National Committee — that these aggregate limits should be thrown out. They teamed up with James Bopp Jr., the intellectual architect behind Citizens United, to make their case.

In 2012, McCutcheon spent heavily in congressional races, doling out $1,776 a piece to 15 candidates who were challenging incumbents. He wanted to donate to an additional 12 — “mostly non-incumbents interested in advancing the cause of liberty,” his brief says. But by then, he’d maxed out the amount he was allowed to give to candidates.

The donor cap kept him from “associating with, demonstrating his support for, and assisting numerous candidates for federal office whom he believed share his political philosophy, and whose messages he embraced,” the brief argues.

McCutcheon also wanted to donate more than the allowable amount to the Republican National Committee (RNC) — and the RNC said it wanted to receive that donation — but both were blocked from doing so by law. “The RNC also has had to decline or refund contributions from other individuals that were permissible under the base national party contribution limit, but illegal under the aggregate limits,” the brief notes.

The Federal Election Commission argues that removing the aggregate limits render the underlying caps on how much each candidate can receive effectively meaningless, and that the move will further erode confidence in the political system.

“Both Congress and this Court have recognized that such limits are an important tool in combating corruption and the appearance of corruption in federal politics,” it said in its brief to the court.

Most respondents — 66 percent — said they believe that spending on election advertising by independent groups causes political corruption, according to a February Huffington Post poll. Only 15 percent disagreed. In a separate poll, only 12 percent thought there should be no limits to what individuals can spend on campaigns.

A Post-McCutcheon Campaign

Dropping the aggregate limits would bring more than $1 billion into the political system by 2020, according to new research by Demos, a nonpartisan think tank and the U.S. Public Interest Research Group, known as Pirg, a consumer advocacy group.

The groups, which oppose McCutcheon, sought to quantify the impact a favorable Supreme Court ruling could have on the political system.

They identified 1,219 “elite” donors who gave at or near the aggregate contribution limit in the 2012 election cycle — a total of $155.2 million to candidates, parties, and PACs. They estimate that without the limits, the donors could have contributed nearly $460 million — a sum that is nearly 50 percent more than all the money that President Barack Obama and Mitt Romney raised from small donors.

The researchers based their estimates on how many donors have both the “ability and the motivation” to increase their giving, and how many would do so moderately or more aggressively, they said. So they plotted out two scenarios, in which donors gave more moderately or contributed significantly more.  But the researchers argued that because this would also allow parties to solicit bigger checks, donors might be more likely to respond in kind. The project’s full methodology is broken down here.

Already, “our government is more responsive to the priorities of the donor class,” which don’t always align with ordinary Americans struggling in a weak economy, said Liz Kennedy, an attorney at Demos. “We argue that with citizen confidence at historic lows, the court should not make matters worse.”

Bopp, a McCutcheon supporter, told FRONTLINE last year that more money is good for the political process. “It doesn’t corrupt the process. It’s necessary for the process,” he said. “To communicate, you have to spend money, so you have to have money to communicate, see, and that’s called speech.”

Campaign spending limits inhibit that speech, he said. And people who aren’t rich enough to make big donations on their own also benefit, because there are wealthy donors on both sides of the aisle, he said.

It’s not clear how the court will rule. Once oral arguments are heard on Tuesday, the court will weigh the case with a ruling to follow in several months.

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