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McClutcheon Oral Args: Mess of Hypos; Is Compromise in the Works?

By William Peacock, Esq. on October 11, 2013 | Last updated on March 21, 2019

Oral arguments in McClutcheon v. FEC, a case with significant implications for campaign finance and free speech, began with a series of hypotheticals about how one might circumvent the contribution limits at stake in this case, such as donating to or forming PACs, and continued with more confusion throughout. There was one brief hint, however, of how a compromise might be reached.

Based on their comments in oral arguments and past stances on campaign finance, most Court watchers are predicting that the four liberal justices (Ginsburg, Breyer, Kagan, and Sotomayor) will likely vote to uphold the aggregate contribution limits, the four conservatives (Scalia, Thomas, Alito, and Kennedy) will likely vote in favor of striking them down, and Chief Justice Roberts will likely operate as the swing vote -- or better yet, as a consensus and compromise builder.

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Friendly Debate

Though they are close friends, Justices Scalia and Ginsburg lined up as predicted.

Justice Ginsburg spoke out in favor of the limits, stating, "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 Scalia, at various points, commented that "It's not that we're stopping people from spending big money on politics," and sarcastically inquired whether a law restricting the free speech of only 2 percent of the population (i.e., the rich) was constitutional.

At another point, Scalia argued that $3.5 million (the most one could donate without aggregate limits, but with individual contribution limits) wasn't a lot of money compared to the $1.5 billion spent in 2010 elections. But Solicitor General Don Verrilli countered that in such a scenario, there is "a very real risk that... the government will be run of, by, and for those 500 people and that the public will perceive that the government is being run of, by, and for those 500 people."

Confusing Hypotheticals

How might one circumvent campaign finance limits? How about forming a hundred PACs, donating the maximum individual amounts to each of those PACS, which then funnel money toward candidates? Or perhaps you might contribute $2,000 to each of a few hundred Democratic politicians, who aren't in danger of losing their seats, who then give the maximum $2,000 to a fellow candidate? Or perhaps... maybe... never mind.

The various conspiracy theories and hypos, tossed around by Justice Kagan and others, were called "wild hypotheticals that are not obviously plausible and certainly lack any empirical support" by Justice Alito.

Wild or not, hypotheticals, rather than discussion of substantive law, made up much of the oral arguments for both sides.

Roberts' Compromise?

There was a hint of how the case might be resolved, however. Chief Justice Roberts, at one point, asked whether it was possible to eliminate limits on how many federal candidates an individual can support at the maximum level (practically speaking, the maximum is nine), while still having other aggregate limits in place to combat corruption. He wants to allow an individual to donate to as many candidates as she feels passionate about, yet still wants to avoid the possible problem of unendangered candidates funneling funds to circumvent restrictions.

Recordings of the arguments can be found on the Court's website, along with written transcripts.

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