The Supreme Court Needs to Get Smarter About Politics (The Washington Post)

At one point during the oral argument Tuesday in the case of McCutcheon v. Federal Election Commission, Justice Antonin Scalia remarked that he didn’t understand the legislation in question.

“This campaign finance law is so intricate that I can’t figure it out,” he said. “It might have been nice to have the, you know, the lower court tell me what the law is.”

Scalia meant to be playful. But as the argument progressed, it became clear that the justices really don’t know enough about money in politics. They expressed skepticism about “wild hypotheticals that are not obviously plausible” — when in fact we’ve already seen those scenarios play out. They talked a lot about the FEC’s “earmarking” and “coordination” rules, but they didn’t seem to recognize that those rules are impossible to police and that a dysfunctional FEC isn’t doing much policing anyway. And the conservatives on the court seemed to fail to understand what leads to corruption or the appearance of corruption — with Justice Samuel Alito going so far as to suggest that giving a very large check to a political fundraising committee isn’t inherently a problem, because the committee could take the money and burn it. “Well, they’re not,” replied Solicitor General Donald Verrilli. “They are not going to burn it.”

Many court-watchers have described McCutcheon as the next Citizens United, to the extent that it could continue dismantling campaign finance laws that have sought to protect our political system from corruption for decades. Whereas Citizens United v. FEC jettisoned the ban on corporate election spending, the petitioners in McCutcheon seek to eliminate the $123,200 cap on an individual’s total donations to candidates, parties and political committees in a two-year election cycle.

Tuesday’s exchanges suggested a further parallel to Citizens United: Despite being out of their depth, the justices seem perfectly comfortable being the ones to decide whether to transform the landscape of campaign finance. They don’t want to defer to Congress on a subject it is obviously more familiar with. Instead, they are forging ahead without understanding the consequences.

The McCutcheon in this case is Shaun McCutcheon, a Republican businessman in Alabama who made contributions of $1,776 to each of 15 congressional candidates running in the 2012 elections and then was surprised to learn that the aggregate federal contribution limit prevented him from giving the same amount to 12 additional candidates. He characterizes himself as simply a generous donor who wishes to exercise his First Amendment right to be more generous, based on the idea that money equals speech.

Not many Americans can afford that much speech, though. In the last election, according to the Center for Responsive Politics, only 3,000 or so Americans reached the limit McCutcheon is challenging. Lifting the limit would mean that a relatively small number of people could have an even more outsize and potentially corrupting influence on the U.S. political process.

The comment about “wild hypotheticals” came from Alito in response to the solicitor general’s calculation that if the aggregate donation limit were eliminated, but the limits on how much an individual can give to each candidate, party or political committee remained, a joint fundraising effort could bring in as much as $3.6 million from a single donor. Alito dismissed that idea as lacking “any empirical support.”

In fact, in the 2012 election, President Obama and Republican presidential nominee Mitt Romney each established a joint fundraising committee consisting of his campaign committee, his party’s national committee and several state party committees. As I laid out in the amicus brief I filed with the court on behalf of the Campaign Legal Center, those joint committees raised hundreds of millions of dollars by collecting the maximum amount from donors that the aggregate limit allows. That’s pretty strong evidence that, Alito’s skepticism notwithstanding, candidates and parties will push the law as far as it will go.

At several points during the court’s argument, there was discussion about how the FEC’s earmarking and coordination rules protect against corruption. In one instance, after Justice Stephen Breyer proposed a hypothetical ad calling for donations “to help Smith PAC support Republican candidates,” Scalia countered: “I would think if you named the PAC after a particular candidate as the hypothetical assumes, I would be surprised if the Federal Election Commission wouldn’t come after you for earmarking.”

In practice, earmarking violations are almost impossible to discover and prove because they take place behind closed doors. Moreover, the FEC almost never investigates such issues, and it has been deadlocked and unable to act on most matters for the past five years.

One of the most out-of-touch moments Tuesday, though, was when Scalia declared that “I don’t think $3.5 [sic] million is a heck of a lot of money” in the context of how much candidates, parties and committees spend in an election cycle. The solitictor general rightly replied that at $3.6 million a pop, a party would have to round up just 450 donors to reach the $1.5 billion spent by the parties and candidates on each side in the 2010 election. “Less than 500 people can fund the whole shooting match,” Verrilli noted.

But the chutzpah award goes to Scalia and Justice Anthony Kennedy, who argued that the contribution limit being challenged doesn’t really prevent corruption because it encourages wealthy donors to instead funnel limitless sums into super PACs and other groups making “independent expenditures.” It was Kennedy who wrote in Citizens United that independent expenditures could never be corrupting, and Scalia agreed. Now they want us to believe that the corrupting influence of super PACs helps make the case for striking down still more limits.

In short, Tuesday’s oral argument revealed that the justices could stand to know much more about the realities of campaign finance law and political fundraising. Part of the problem is that the Roberts court has less political experience than any group of justices in Supreme Court history. For the first time, none of the justices has ever run for elected public office or served in a legislature. Justice Sandra Day O’Connor, a former Arizona state senator, was the last to have done so, and it’s no accident that she was a key vote in upholding the anti-corruption measures the court has been striking down since her retirement.

Judicial hubris is also a concern. The Roberts court shows a surprising lack of respect for Congress’s expertise on political matters. Since Roberts’s confirmation as chief justice in 2005, the court has issued 23 opinions involving voting rights, redistricting or campaign finance. And in each of the five campaign finance cases the court has heard, it has struck down or drastically narrowed the law under challenge.

This contempt for legislative authority was on full display in Citizens United. The court’s conservatives went out of their way to decide the case as broadly as possible, striking down the 60-year-old federal law prohibiting corporate electoral spending and throwing out similar prohibitions in 24 states.

Kennedy’s majority opinion stated that eliminating those limits wouldn’t adversely affect our democratic system because the money spent in elections would be fully disclosed, and that the spending would not be corrupting because it would be completely independent of candidates and parties. What we got was a tsunami of money in the 2012 elections from tax-exempt groups that did not disclose their donors and from supposedly “independent” super PACs run by candidates’ former top aides, close friends and family members. This was easy to predict. But the five justices who signed the majority opinion didn’t see it.

Now, the court appears to be on the verge of repeating its mistakes. At least some of the justices in the McCutcheon argument appeared willing to assume the role of legislators, eager to substitute their own policy judgments and conceptions of political corruption for those of Congress.

“Is there any way to prevent the concern you have about the three-point-whatever-it-is million-dollar check without imposing the limit on the person who wants to support 10 candidates rather than one?” Roberts asked.

“Well, I suppose you could try to calculate an aggregate contribution limit that is different and higher than the one that is here now,” the solicitor general replied. But devising the ideal aggregate contribution limit is not the court’s role. It should accord deference to Congress’s determination.

The Roberts court should get more politically savvy — and at the same time stay out of politics.

The justices should seek to make up for their lack of political experience by demanding, as Breyer and Sotomayor did in the course of the McCutcheonargument, a voluminous factual record of the policy and real-world impact of proposed campaign finance changes before rendering judgment. And when the time comes to pick the next Supreme Court justice, the president should think of nominating someone with a background in electoral politics.

Even then, the court shouldn’t overestimate its understanding of how money in politics flows. It should leave politics to the politicians, who have a better sense of when the intersection of fundraising and lawmaking leads to corruption.

Trevor Potter, a former FEC commissioner and chairman, is president of the Campaign Legal Center and head of the political law practice at Caplin & Drysdale.  This opinion piece originally ran in the Washington Post's Sunday Outlook section on October 13, 2013.