Bopp argues that contribution limits need re-examining in the post Citizens United world. The unlimited cash flowing through independent expenditures is drowning out the candidates’ campaigns, he says, noting that several states have recently raised contribution limits.
“Politicians need to start reevaluating how contribution limits are making them bit players in their own elections,” he says.
Other legal experts note that the suitcase full of cash still exists in the McCutcheon case, just not as obviously. While the money doesn’t go directly to a candidate, there is little to stop a party or a PAC from funneling it to the donor’s candidate of choice or spending it on ads on his or her behalf.
Fred Wertheimer, a campaign finance reform advocate with Democracy 21, thinks the case could eviscerate a key provision of campaign finance law: a prohibition on candidates soliciting huge sums of money from individual candidates.
President Obama’s fundraisers during his last campaign often had ticket prices of up to $50,000, which was then divided up among his campaign and Democratic committees. If the aggregate limit is lifted, Wertheimer says, those tickets could go for $1 million or more. In that instance, the suitcase full of cash is very real.
“That money could end up being spent for the individual who solicited it,” Wertheimer says. “Regardless of how the money is divided up, you would have an official soliciting $1 million checks which is a clear formula for corruption.”
Chris Shays, the former Republican congressman and Senate candidate from Connecticut, offered another solution. The current spending levels between independent groups and candidate campaigns are so out of whack that Congress should step in.
“I don’t think the court should overrule it,” says Shays, a leading voice on campaign finance reform, “but I think Congress should look at whether that amount should be doubled or tripled.”
The court has also put on hold whether it will consider another case involving aggregate limits. James v. FEC challenges the commission’s cumulative limit on contributions to individual candidates only. The suitcase still exists there, as well. In theory, a contributor could give money to every senator and each senator could, in turn, give that money to the donor’s preferred candidate.
Legal experts also noted that campaign coordination is becoming ripe for challenges. When a Republican presidential nominee talks about his Super PAC, it raises questions about whether the PAC is independent. Is a contribution to his PAC, then, really an independent expenditure? Or is it a contribution to the candidate? Wertheimer notes the separation between PACs and candidate campaigns was a building block of the Citizens United decision.
“Efforts are going to be made to get real coordination rules,” he says. “Right now, the lynchpin of Citizens United is based on the idea that expenditures must be independent. That’s just a joke today.”
Another issue that has risen to the Supreme Court level previously centers on the duty of a publicly-elected judge to recuse themself from cases involving citizens who spent money on their behalf. In 2009, the court ruled in Caperton v. A.T. Massey Coal Co. that a judge must recuse himself if there is a situation that creates a probability of bias. In that case, a West Virginia Supreme Court of Appeals judge ruled in favor of a mining company whose CEO spent millions of dollars on independent expenditure ads during the judge’s last campaign.
The ruling left plenty of questions unanswered, including just what threatens the judicial branches’ impartiality. How much money is too much?
Bopp, the Indiana lawyer, says it’s hard to predict what the court will take up. But Bopp seems to know better than most: The McCutcheon case represents his seventh case before the justices. And he isn’t showing any sign of slowing down.
“It’s just really unpredictable which ones the court ultimately finds suitable for its agenda,” he says. “You just present them with as many worthy cases as you can.”
Jeremy P. Jacobs covers the Supreme Court for Greenwire, a publication of Environment and Energy Publishing, LLC.