The Shady Trick Justice Scalia Plans To Use To Inject Even More Big Money Into Elections


WASHINGTON, DC — The Supreme Court’s consideration Tuesday of a bid by the Republican National Committee to make it easier for wealthy individuals to influence elections fixated on a series of related hypotheticals, all involving schemes enabling the very rich to lavish money on their favorite party or candidates. In Justice Elena Kagan’s version, activists set up literally hundreds of shell organizations, each of which promises to work to elect like-minded candidates in the five most contested U.S. Senate races. A donor then makes a maximum-dollar donation to each of these shell groups, effectively laundering hundreds of thousands of dollars to each of these five grateful candidates. Thus, although federal law bans massive dollar donations to individual candidates in order to prevent corruption, Kagan’s hypothetical offers a way around that law.

And if the Supreme Court gives the GOP what it is asking for, this money laundering scheme will almost certainly be legal.

The specific issue in McCutcheon v. Federal Election Commission (a businessman named Shaun McCutcheon is also a plaintiff in the case, along with the RNC) is whether two limits on how much money wealthy individuals can give to parties and candidates will survive contact with the conservative Roberts Court. Current law limits the amount rich donors can give to individual candidates (currently, $2,600) as well as the amount that they can give to party organizations. Additionally, the law also limits how much the wealthy can give altogether to all candidates and to all party groups. Presently, these limits are $48,600 to candidates and $74,600 to PACs and party committees — for a total cap of $123,200. McCutcheon and the RNC challenge these final two caps. So they want people who have already given more than a hundred thousand dollars to Republican candidates and to GOP groups to be allowed to donate even more.

In the past, less conservative Supreme Courts have allowed these caps to exist, citing the government’s interest in preventing corruption. As Kagan’s hypothetical suggests, it is very easy to launder money from PACs or party organizations to benefit individual candidates. So, without these limits, quid pro quo deals where a donor launders hundreds of thousands of dollars to aide a single candidate in return for some policy consideration will be very easy to strike.

Yet, as Justice Antonin Scalia eagerly points out, there’s a problem with this rationale. Thanks to the five Republican justices’ decision in Citizens United, there’s now a much easier — and perfectly legal way — for millionaires and billionaires to do expensive favors for candidates. Though massive gifts directly to candidates and parties remain illegal after Citizens United, wealthy donors can give as much money as they want to Super PACs and other so-called “independent” organizations backing one candidate or another. If Sheldon Adelson can already spend $150 million to put his favorite Republican candidates in office, what’s so bad about him laundering some of that money to these candidates in the way Justice Kagan laid out?

It’s a neat trick. First Scalia, along with his four fellow Republicans, sign onto a Supreme Court opinion holding that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Having enshrined this doubtful proposition into law, Scalia now points out that money given directly to parties isn’t any more corrupting that money given to super PACs. And Scalia is right! Is there anyone who thinks that Republican candidates are somehow less likely to do favors to Sheldon Adelson if he funnels his money through an “independent” organization rather than through a hundred Republican shell groups?

As it turns out, there may be exactly one person who believes this. Throughout the oral argument, Chief Justice John Roberts seemed equally bothered by hypotheticals like Kagan’s and by the fact that Mr. McCutcheon doesn’t actually claim that he wants to become the next Sheldon Adelson. McCutcheon, by contrast, wants to be able to give thousands — not hundreds of thousands — more than he currently can to GOP candidates, and he’s upset that the current law will not let him. Many of Roberts’ questions focused on whether there’s a way to prevent people like Adelson from doling out millions to the GOP while still permitting McCutcheon to spend tens of thousands.

As a practical matter, however, it may not make a difference that Roberts staked out a position slightly to Scalia’s left. If Roberts writes an opinion striking down the current donation limits but inviting Congress to enact higher ones, for example, it is unlikely that Congress takes him up on this invitation any time soon. This is, after all, the same Congress that is currently debating whether or not to destroy the American economy by refusing to raise the debt ceiling.

Roberts’ own history also raises doubts about whether he’ll ultimately break with Scalia. In 2009, Roberts initially staked out a more moderate position than the Court eventually reached in Citizens United. Eventually, however the Chief Justice bowed to the Court’s right-wing like John Boehner at a tea party convention.

If Scalia gets his way in McCutcheon, it’s not hard to guess what comes next. If the distinction between quid pro quo contributions funneled through super PACs and similar contributions laundered through party organizations makes no sense, then a requirement that such contributions be made via elaborate money laundering schemes rather than through direct donations to candidates is also nonsensical. Scalia’s path is the path to campaign finance anarchy, and it ends with Sheldon Adelson writing massive checks directly to Republican candidates.