Unleashing More Money Into Politics

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WASHINGTON -- One of the first cases the Supreme Court will consider in its next session is whether to allow millions, perhaps billions, more dollars into the U.S. political system.

That may seem like a joke, considering that more than $6 billion was pumped into the elections last year. A flood of special-interest money, courtesy of earlier rulings by Chief Justice John Roberts's court, led to a campaign that many found depressing.

The issue that will be argued on Oct. 8 is whether to remove the limit, in place for almost four decades, on the aggregate amounts any contributor can give directly to candidates and parties for federal elections in a single cycle. There are no limits now on independent expenditures or money given to so-called political action committees, creating what critics call a system of legalized, indirect bribery.

If the court decides to remove most of the limits on upfront contributions to presidential or congressional campaigns, it would no longer be indirect.

Going back to its first major campaign-finance decision in 1976, the high court has always distinguished between contributions and independent expenditures, and majorities have ruled that contributions can be limited to prevent corruption or the appearance thereof.

That contrasts with expenditures, which the court has ruled are a form of speech. These rulings included the lifting of the ceiling on the amount of personal money a rich candidate could spend and the Citizens United case, which freed corporate money to be spent on supposedly independent political expenditures.

Then a lower court gave the green light to wealthy individuals to give unlimited sums to so-called super PACs, which back politicians but are supposed to be distinct from the campaigns, and are a bit of a fiction.

Until now, the high court has consistently upheld limits on direct contributions to candidates for federal office or political parties. If the court reverses these precedents, the impact on campaign spending and influence-peddling would be considerable.

"The consequences could be worse than Citizen United," says Fred Wertheimer, the president of Democracy 21, who has been a tireless advocate for change in campaign finance for 40 years.

Critics of campaign-finance limits reply that such alarm is typical of ol' Fred, who claims the sky is falling every time another dollar is thrown into politics. And, they believe, the public will not be aroused by arcane fights over "aggregate" ceilings.

Yet Mr. Wertheimer, and the amicus brief to the Supreme Court filed by a former U.S. solicitor general, Seth P. Waxman, are taking on big stuff.

First, it is necessary to understand that all political spending is not equal. Any campaign will tell you that the money it controls is far more valuable than the money spent by outside supporters. The money unleashed by Citizens United and other decisions contributed to the ugly tone of last year's campaign, but it was not as important as the money spent by President Barack Obama, the former Massachusetts governor Mitt Romney, and most congressional candidates.

Under current law, a rich contributor, who can spend any amount on independent efforts or super PACs, is limited to donations of $74,600 per election cycle to the party committees; in addition, a total of $48,600 can be given to individual candidates.

Here is what would happen if the court strikes down these aggregate limits: Let's say that for 2016, a presidential candidate -- Hillary Rodham Clinton, for example -- set up what is called a joint fund-raising committee. She could then ask, among others, the Hollywood mogul and Democratic money man Jeffrey Katzenberg to directly give almost $1.2 million to her committee, in addition to his other political spending.

That would include the maximum allowed to her campaign, $5,200; the maximum to the three party committees, $194,400; and the maximum to all 50 state parties, $20,000 each, or $1 million.

Although most of this money is supposed to go to state parties or other campaign committees, the Clinton campaign would effectively control it. That adds considerable value and clout for any donor.

A similar joint fund-raising committee could be established by, say, Eric Cantor, the House majority leader.

Then, Harold Simmons, the Texas billionaire with interests in mining and toxic dump sites who is always on the lookout for political favors (he doled out $27 million last year), could give Mr. Cantor's committee directly more than $2.3 million. This would include $64,800 for the House campaign committees and the maximum of $5,200 per candidate for the 435 House candidates.

Although it is only 10 percent of what he gave in independent spending and to PACs last year, this form of direct giving to a powerful politician is more valuable to Mr. Simmons as a political investment.

The Waxman brief argues that lifting these limits would "effectively negate" the ban on so-called soft money enacted in 2002, under the McCain-Feingold law. Ten years ago, the Supreme Court said these soft-money contributions were "likely to create actual or apparent indebtedness on the part of federal officeholders." A dueling brief on behalf of Senator Mitch McConnell, the minority leader, filed by the veteran campaign-finance lawyer Bobby R. Burchfield, argues against drawing any real distinction between expenditures and contributions. As for precedent, it said the Roberts court "has not hesitated to overrule decisions offensive to the First Amendment," citing Citizens United.

Mr. Burchfield pointed out that since the aggregate limit does not preclude a politician from taking money from any contributor -- it only limits the total amount that can be given -- big money was more important than small donations. This is evidenced, he writes, by the fact that so many contributors give the maximum amounts allowed.

With these aggregate limits, anyone could give $100 to every member of Congress of his or her party and $2,000 at the same time to a presidential candidate.

That would not impress the politician or buy as much influence as several million bucks.

nation

This article originally appeared in The New York Times.


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