Before the U.S. Supreme Court today, Solicitor General Donald Verrilli Jr. vigorously defended the current overall cap on political contributions as a tool that helps prevent corruption and the appearance of corruption.
"Aggregate limits combat corruption," Verrilli told the nine Supreme Court justices, arguing that should party leaders such as the speaker of the House or Senate majority leader solicit seven-figure checks there is an "inherent risk of corruption" and a "risk of indebtedness" to wealthy donors.
McCutcheon's lawyers today argued that such limits, which are indexed to inflation and periodically raised, restrict his First Amendment rights.
If the court were to axe the current overall contribution limits, Verrilli predicted that "less than 500 people" could "fund the whole shooting match," and then the government would be "run of, by and for those 500 people."
An aggregate limit on political contributions was enshrined into law by Congress in the wake of the Watergate scandal in the 1970s.
The current limits restrict people from donating more than $123,200 to federal candidates, parties and political action committees. No more than $74,600 may be donated to parties and PACs, while no more than $48,600 may be given to candidates.
The high court's four more liberal-leaning justices — Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor — appeared sympathetic to Verrilli's arguments.
But a majority decision to uphold current law would require at least five votes, which may be an uphill battle on a court that has generally favored the deregulation of campaign finance rules.
Judicial observers predict that Chief Justice John Roberts will be the swing vote in the McCutcheon case. During today's oral arguments, Roberts raised questions that suggested — but hardly guarantee — he may be seeking a more narrowly tailored resolution, although it may be months before the court issues a ruling. Breyer even suggested that the case be remanded to a lower court.
At one point, Roberts asked Verrilli how a donor who supported both gun control and environmental regulation should decide which nine federal candidates he would financially support at the maximum level — the $48,600 limit means no more than nine candidates could get $5,200 for their primary and general election contests.
At another juncture, Roberts observed that the government would not say the Washington Post or New York Times could "only endorse nine candidates."
"I suppose you could try to calculate an aggregate contribution limit that is different and higher," Verrilli said, adding that you would have to "do five or six things to deal with the risks of corruption."
Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas have in the past expressed skepticism of — if not outright opposition to — campaign contribution limits.
At oral arguments today, Justice Samuel Alito also appeared aligned with that camp.
Alito told Verrilli that the government's argument contained "wild hypotheticals" that "lack any empirical support," as he raised the specter of joint fundraising committees, headed by party leaders, soliciting multi-million-dollar checks.
That politicians would band together and all transfer money to a candidate in a contested race "seems dubious on its face," Alito said.
McCutcheon's case was argued by Erin Murphy, a former clerk to Roberts. She asserted the existing limits are structured to "equalize" the speech of wealthy and less wealthy people, a rationale the court has rejected in the past.
Also arguing against the aggregate limits was attorney Bobby Burchfield, who was representing Senate Minority Leader Mitch McConnell, R-Ky. A vocal supporter of campaign finance deregulation, McConnell filed an amicus brief in support of McCutcheon that asserted all campaign contribution limits — aggregate and individual — should be tossed.
Burchfield argued that the limits put "like-minded political parties" in the position of competing against each other for "an artificially limited pool of money."
He faced skeptical questioning for several justices, including Kagan, who asked if removing the aggregate limits would mean wealthy donors would "get a very, very special place at the table."
Burchfield responded by citing the Supreme Court's Citizens United v. FEC decision in 2010, authored by Kennedy, which states that "ingratiation and access, in any event, are not corruption."
For his part, Scalia also bemoaned the fact that independent politically active groups, such as super PACs, were raising more "big money" than the parties or candidates themselves. Independent "drive-by PACs" could "sap the vitality" from the national parties, Scalia said.
Verrilli countered that candidates and parties still "raise and spend very substantial amounts of money." The government's legal briefs also argues that "Congress is not required to level the playing field" between parties and outside groups.
Such handwringing led Kagan to joke that if her more conservative colleagues were having "second thoughts" about the potential corrupting effects of independent expenditures that they seemed unconcerned with in Citizens United, the court "could change that part of the law."
During the 2012 election cycle, McCutcheon personally donated about $66,000 to federal candidates, parties and PACs, including about $35,000 split among 15 federal candidates, as the Center for Public Integrity has previously reported.
McCutcheon's legal argument also involes the question of what level of "scrutiny" the contribution limits warrant.
Since the Supreme Court's landmark 1976 campaign finance case Buckley v. Valeo, regulations regarding contributions to candidates have faced more lax review than restrictions on spending — such as the ban on corporate electioneering that was overturned in Citizens United.