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High court weighs balance of free speech, corruption risk in campaign donations

October 8, 2013 at 12:00 AM EST
The Supreme Court has previously upheld limits on contributions made by individuals to political campaigns. Judy Woodruff talks to Marcia Coyle of The National Law Journal about a new round of arguments at the high court on whether the burden that limits place on free speech outweigh the risk and appearance of corruption.
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TRANSCRIPT

JUDY WOODRUFF: The Supreme Court kicked off its new term by hearing arguments in what could be the most important case of the judicial year — at issue, whether to lift the cap on total donations one individual can make to politicians during an election cycle.

Here to walk us through the arguments is Marcia Coyle of “The National Law Journal.” She was in the courtroom today.

It’s good to have you with us.

MARCIA COYLE, The National Law Journal: Good to be back, Judy.

JUDY WOODRUFF: Another term under way.

MARCIA COYLE: Another big case.

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JUDY WOODRUFF: So, before we talk about this case, Marcia, it’s important to have you define what — define what limits we’re talking about. There are different kinds of limits when it comes to political contributions.

MARCIA COYLE: Right.

Well, our federal law contains two types of limits on contributions by individuals to candidates, political parties, and political committees. There are base limits, which restrict the amount that an individual can give in an — in a single election year, and then there are what we calling aggregate limits, which restrict the amount, the total amount, that an individual can give in a two-year election cycle.

Now, right now, that aggregate limit is about $123,000. The Supreme Court has upheld base limits and aggregate limits. They did it in 1976. They acknowledged at that time that this was a burden on speech and association rights, but that burden was outweighed by the government’s substantial interest in combating corruption, quid pro quo corruption, and the appearance of corruption.

And the court has not eroded those limits in the intervening 40 years.

JUDY WOODRUFF: So the main case before the court today is this Alabama businessman, who says, we need to do away with some of the — with the total limit.

MARCIA COYLE: Yes, the Alabama businessman and the Republican National Committee, and also participating in arguments today was a lawyer for Senator Mitch McConnell, who has been a longtime foe of campaign finance limits.

JUDY WOODRUFF: The Senate Republican leader.

MARCIA COYLE: Right.

And their main argument is that, since 1976, there are many more regulations on the books to prevent what was the main justification by Congress for the aggregate limits. Congress imposed them, it said, in order to prevent circumvention end-runs around the base limits.

JUDY WOODRUFF: And so — and that was the argument. And what kinds of questions were you hearing from the justices?

MARCIA COYLE: Well, it was interesting, Judy, because you could see on the court almost the same type of divide that we saw on the court in 2010 with the Citizens United decision.

You had primarily justices on the conservative side of the court, Justices Scalia and Alito, really skeptical of whether lifting the aggregate limits would prevent corruption or the appearance of corruption. On the other side, of course, of course, the government was arguing that these limits are still needed to combat corruption and the appearance of corruption.

But, on the other side of the bench, the more liberal justices, they gave many hypotheticals testing that and appeared to be indicating that they did believe it was possible that, without the aggregate limits, you could have an individual writing a check for approximately $3 million, giving it to a candidate, and of course you’re going to have a seat at the table if you do something like that.

JUDY WOODRUFF: And so what — and how were the attorneys who were representing each side, how were they answering this?

MARCIA COYLE: Well, they stuck to their arguments that, one, there’s no need to worry about circumvention of the base limits anymore, that without the aggregate — well, with the aggregate limits, you’re basically — you’re burdening much more speech than is necessary, and that violates the First Amendment.

And the government said, but if you lift these limits, you’re going to have roughly maybe 500 of the wealthiest Americans controlling the elections in this country.

JUDY WOODRUFF: And how much were the justices concerned about that?

MARCIA COYLE: I think there was concern primarily on the liberal side, although it was very interesting. Chief Justice Roberts, he hasn’t been as aggressive as some of the other justices when it comes to limiting money in campaigns, even though he did vote in Citizens United to lift the limits on spending.

JUDY WOODRUFF: Lifted — voted with the majority.

MARCIA COYLE: Right. But he voiced concern about what these aggregate limits do to the smaller donor, who, under current limits, can basically give to nine candidates, but runs afoul of the law if he or she gives to 10 candidates.

So he saw this as severe restriction on small donations. But Justice Ginsburg actually thought that the aggregate limits encourage more speech, because they require candidates and parties to cast a broader net to bring in more donors in order to get the money they need to run the elections.

JUDY WOODRUFF: So, just quickly, a sense today from what the justices were saying of what we may — what may happen?

MARCIA COYLE: My sense is the aggregate limits are in a lot of trouble with the court. And Chief Justice Roberts was looking for a narrower way to decide it, but he didn’t get much help from either side’s lawyers.

JUDY WOODRUFF: Marcia Coyle, thank you very much.

MARCIA COYLE: My pleasure, Judy.

JUDY WOODRUFF: All right.