Justices Pick at Campaign Donor Limits

WASHINGTON —  The future of campaign finance reform appeared to be in some doubt Tuesday, as the Supreme Court’s five conservative justices questioned whether government-mandated contribution limits violate the 1st Amendment rights of candidates and their supporters.

For an hour, the justices heard competing lawyers argue over whether Missouri can set a $1,075 per year limit on how much candidates receive from individual contributors.

But the dispute quickly turned into a larger debate over the role of money in politics. Does democracy demand that all citizens have a roughly equal voice and that the wealthy do not have undue influence? Or instead, does the Constitution’s guarantee of freedom of speech demand that the government step aside and leave individuals free to support candidates as generously as they choose?

All nine justices joined in the debate and, judging from their comments, they seemed closely split.

The four liberal-leaning justices took up the side of contribution limits.

“A big megaphone can drown out the smaller ones,” said Justice Stephen G. Breyer.

Justice David H. Souter agreed. “It seems to me highly plausible that someone making an extraordinarily large contribution [to a candidate] is going to get something extraordinary in return,” he said.

He and Breyer, along with Justices John Paul Stevens and Ruth Bader Ginsburg, signaled that they continue to support the court’s 1976 ruling that upheld limits on contributions to candidates.

In the wake of the Watergate scandal, Congress put a $1,000 ceiling on donations to federal candidates, and the Supreme Court unanimously upheld this restriction in the case of Buckley vs. Valeo. Big cash donations “create an appearance of corruption [and] undermine public confidence in the political process,” the court said.

But Watergate memories have faded. And the conservative justices now are saying that they do not see why supporting a candidate with a large donation is corrupt. Since the money is used to put up signs or pay for ads, it adds to the campaign debate, they have said.

“If a contribution is speech, it’s hard to say speech is a subversion of the political process,” commented Justice Anthony M. Kennedy.

Justice Sandra Day O’Connor, in brief comments, said that Missouri’s law must “pass rigorous 1st Amendment scrutiny,” and she suggested that the state had not made a convincing case.

If the state can limit how much money candidates receive, asked Justice Clarence Thomas, can it also limit how much newspapers charge for political ads? While the state attorney fumbled for an answer, Thomas made clear that he thought the state could do neither--regulate contributions nor newspaper ad rates.

The most skeptical questions came from Chief Justice William H. Rehnquist and Justice Antonin Scalia. They said that they do not understand why giving money to a candidate is seen as corruption.

“Suppose a labor union says to a candidate, ‘We will go all out to support you, to knock on doors and so on, if you will support an increase in the minimum wage.’ Is that corruption?” Scalia asked.

No, said Missouri Atty. Gen. Jeremiah “Jay” Nixon, who was defending his state’s contribution limit.

“Suppose a corporation gives $10,000 to the candidate and he hires people to do the same things--to go knock on doors. Is that corruption?” Scalia continued.

Yes, Nixon responded. A cash contribution allows one person or group to buy undue influence, he said.

Scalia was unswayed. “It’s the same thing. It’s buying the same thing,” he said.

The case before the court arose when a St. Louis lawyer named Bevis Shock decided to back his golfing partner, Zev David Fredman, as a Republican candidate for state auditor in Missouri.

A political novice, Fredman had no list of supporters, and the law limited how much his friends could give him. Despite the aid of Shock’s small-government group known as “Shrink Missouri Government PAC,” Fredman raised less than $5,000 and was crushed in the 1998 Republican primary.

But Fredman’s failed effort as a candidate could make political history if the Supreme Court uses his case to strike down contribution limits.

Last year, the U.S. court of appeals in St. Louis, responding to his lawsuit, ruled that Missouri’s law violated the 1st Amendment.

The state attorney urged the court to reverse that ruling and to uphold the limits. “The vast majority of citizens will believe their government is literally for sale” if the wealthy can give unlimited donations to a candidate, Nixon said.

Representing Fredman, law professor D. Bruce La Pierre of Washington University in St. Louis urged the court to allow the free market to work. “We can trust the American people,” he said. “When someone takes too much money from one person, [the voters] can vote against him on that basis.”

A ruling in the case (Nixon vs. Shrink Missouri Government PAC, 98-963) can be expected in several months.

If the justices side with the state, the ruling will uphold the legal status quo and encourage advocates of campaign finance reform in Congress.

If the justices strike down Missouri’s limits, the decision could cast doubt on all contribution limits, whether local, state or federal.