The U.S. Supreme Court appears poised to strike down most of the remaining limits on massive spending by wealthy donors on political campaigns. On Tuesday, justices heard arguments in McCutcheon v. Federal Election Commission, which has been referred to as “the next Citizens United.” Republican leaders and wealthy GOP donor Shaun McCutcheon wants the Supreme Court to throw out aggregate limits on individual contributions in a single two-year cycle, saying they violate free speech. “If these advocate limitations go down, 500 people will control American democracy. It would be ‘government for the 500 people,’ not for anybody else — and that’s the risk,” says Burt Neuborne, law professor and founding legal director of the Brennan Center for Justice at New York University Law School. On Tuesday, Chief Justice John Roberts indicated he is prepared to strike down caps on donations to individual candidates, but perhaps not on donations to political committees. Justice Antonin Scalia appears to be set to back the lifting of all limits. “The Scalia side says, ‘Look, if you’re rich, you’re entitled to have as much influence as you can buy,’” Neuborne says. “And the Scalia side has won 5-to-4 consistently in recent years.”
This is a rush transcript. Copy may not be in its final form.
Amy Goodman: The U.S. Supreme Court appears poised to strike down most of the remaining limits on massive spending by wealthy donors on political campaigns. On Tuesday, justices heard arguments in McCutcheon v. Federal Election Commission, which has been referred to as “the next Citizens United.” Republican leaders and wealthy GOP donor Shaun McCutcheon want the Supreme Court to throw out aggregate limits on individual contributions in a single two-year cycle, saying they violate free speech. On Tuesday, the likely swing vote, Chief Justice John Roberts, indicated he is prepared to strike down caps on donations to individual candidates, but perhaps not on donations to political committees. The McCutcheon case marks the first major challenge to campaign finance rules since the 2010 Citizens United decision, which opened the floodgates for unlimited corporate spending on elections.
For more, we go to Burt Neuborne, law professor, founding legal director of the Brennan Center for Justice at NYU Law School.
Welcome to Democracy Now! Talk about the significance of this week around campaign finance.
Burt Neuborne: Well, the importance of the McCutcheon case is it’s the first time people have zeroed in on contribution limitations. The law is that expenditures—if you spend your own money—that’s now completely uncontrolled. And so you have these extraordinarily wealthy people—the Koch brothers or George Soros, on the other side—pouring huge amounts of their own money in. Nothing can be done about that. Up until now, contributions, though, were treated differently, because the idea of a contribution created the possibility of a quid pro quo deal with a candidate. And so, contributions could be limited.
And there are two kinds of limitations. There’s something called a base limitation, which limits the amount that can be given to any particular candidate or any particular committee, and then the aggregate limitation, which is a total that can be given to everybody. The numbers are huge. I mean, you wouldn’t believe it. The existing numbers now are $5,200 for a candidate in an election cycle.
Amy Goodman: That you can give.
Burt Neuborne: That you can give—$32,400 on top of that to a political—to the national political party, $10,000 on top of that to the state party, and $5,000 to as many PACs as you want, and there’s an unlimited number of them.
Amy Goodman: So it’s around $50,000.
Burt Neuborne: The only thing that prevents that from spinning out of control, to—I did the math last night, about $3.6 million each election cycle per person—the only thing that prevents that from spinning out of control are the aggregate limitations. And the aggregate limitations are $123,200, and that’s what McCutcheon says is too small.
Amy Goodman: During the oral arguments, Justice Ruth Bader Ginsburg said, quote, “By having these limits you are promoting democratic participation, then the little people will count some, and you won’t have the super-affluent as the speakers that will control the elections.” Justice Antonin Scalia responded somewhat sarcastically by saying, quote, “I assume that a law that only—only prohibits the speech of 2 percent of the country is okay.” That was Scalia.
Burt Neuborne: And that’s the—that’s the gulf that divides the court on these cases. Justice Ginsburg thinks that we should use campaign finance reform to advance equality, so that everybody has a roughly equal political influence. Scalia says, “Look, if you’re rich, you’re entitled to have as much influence as you can buy.” And that’s now been the collision, and the Scalia side has won five-to-four consistently in recent years.
Amy Goodman: At a rally outside the Supreme Court Tuesday, Senator Bernie Sanders said unlimited private spending undermines U.S. democracy.
Sen. Bernie Sanders: The bottom line here is that if we do not want to move this nation to an oligarchic form of society, where a handful of billionaires can determine the outcome of these elections, then it is imperative not only that we overturn Citizens United, but that we put a lid on how much people can contribute in elections. Freedom of speech, in my view, does not mean the freedom to buy the United States government.
Amy Goodman: And on the other hand, you have Shaun McCutcheon’s lawyer’s comments, this Erin Murphy, during oral arguments, saying, quote, “By prohibiting contributions that are within the modest base limits Congress has already imposed to combat the reality or appearance of corruption, these limits simply seek to prevent individuals from engaging in too much First Amendment activity.” Burt Neuborne?
Burt Neuborne: Well, that’s the collision. The collision is that some people—like Bernie Sanders says, it is too much First Amendment activity when you can spend so much money that you have a hugely disproportionate influence, and they owe you favors later. What kind of a democracy is that? Ruth Ginsburg put it perfectly. She said, if these aggregate limitations go down, 500 people will control American democracy. It will be government for the 500 people, not for anybodyelse. And that’s the risk.
Amy Goodman: Burt Neuborne, I want to thank you for being with us. We will certainly continue to follow this case. Burt Neuborne, professor of civil liberties and founding legal director of the Brennan Center for Justice at NYU Law School.
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