Elena Kagan, the youngest justice on the U.S. Supreme Court, wasted no time yesterday jumping into the fray during argument in the latest campaign finance case, McCutcheon v. FEC, according to this Reuters report.
At issue in McCutcheon is the viability of FEC aggregate limits on contributions to candidates and political committees.
Just minutes after the argument began, Kagan fired off a number of worst-case scenarios that might result if the court threw out those limits:
Kagan raised the specter of an individual donor who stays within the base $5,000 limit for a Political Action Committee (PAC) but then – presuming the aggregate limits are lifted – contributes to 100 PACs. She theorized that money could be transferred to U.S. Senate candidates who would know of the original contributions and feel beholden to the contributors.
Under another scenario, she said, an individual could stay within base limits on contributions to candidates, parties and committees but – if facing no overall cap – give a total $3.5 million. “Having written a check for 3.5-or-so million dollars … are you suggesting that that party and the members of that party are not going to owe me anything, that I won’t get any special treatment?”
Those scenarios, mocked by Justices Antonin Scalia and Samuel Alito, caught the attention of others, though — including Justice Anthony Kennedy and Chief Justice John Roberts — prompting some to speculate that a decision along party lines might not be forthcoming.
At another point, Kagan took a shot at her conservative colleagues’ decision in Citizens United:
Justice Kennedy, who wrote the Citizens United decision, challenged Verrilli about the underpinning of the court’s 1976 Buckley v. Valeo ruling that gave government more leeway to put limits on contributions compared to expenditures.
Verrilli said Congress could always write a new law, if it chose, changing the contribution limits.
That prompted Kagan to interject, “And General, I suppose that if this court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law.” That would mean reversing Citizens United. Said Verrilli, “Far be it from me to suggest that you don’t, your honor.”