CHIEF JUSTICE ROBERTS: We’ll hear argument first this morning in Case 12-536, McCutcheon
v. The Federal Election Commission.
Ms. Murphy. ORAL ARGUMENT OF ERIN E. MURPHY
ON BEHALF OF THE APPELLANTS MS. MURPHY: Mr. Chief Justice, and may it
please the Court: BCRA’s aggregate contribution limits are an
impermissible attempt to equalize the relative ability
of individuals to participate in the political process.
By prohibiting contributions that are within the modest
base limits Congress has already imposed to combat the
reality or appearance of corruption, these limits simply
seek to prevent individuals from engaging in too much
First Amendment activity. These limits cannot be justified on
circumvention grounds because the concerns the
Government hypothesizes are already addressed by BCRA’s
multitude of more direct anti-circumvention measures.
JUSTICE BREYER: How is that? MS. MURPHY: Because BCRA imposes numerous
direct circumvention measures. For instance, we have
earmarking provisions on earmarking contributions for a
candidate. We have coordination restrictions on
coordinated expenditures with a candidate. There are
proliferation restrictions on creating multiple PACs
that are all designed - JUSTICE BREYER: Now, all these were there
at — but for one — were there at the time of
Buckley vs. Valeo, and I guess the Court thought something could happen like the following:
Candidate Smith, we can only give him $2,600, but he
has a lot of supporters. And each of them — 40 of them
gets a brainstorm. And each of the 40 puts on the
internet a little sign that says, “Sam Smith PAC. This
money goes to people like Sam Smith. Great people.”
Now, we can give each of those 40 $5,000. They aren’t coordinated. They’re not established
by a single person. Each is independently run.
And we know pretty well that that total of $5,000 times
40 will go to Sam Smith.
Okay? What does that violate. MS. MURPHY: Well, there’s a couple problems
with that hypothetical, Your Honor. First of all, there
are base limits both on what can be given to a PAC -
JUSTICE BREYER: $5,000 is - MS. MURPHY: — and on what a PAC can give
to a candidate. JUSTICE BREYER: $5,000. So we all have is
my $5,000 going to the PAC, and there happened to be 400
PACs. So 5,000 times — 4,000. Five times 40, five
times 400, how much is that? I’m not too good at math.
(Laughter.) MS. MURPHY: Without doing the math, I will
tell you that earmarking and proliferation restrictions -
JUSTICE BREYER: No, no. There is no earmarking.
MS. MURPHY: But — but there’s - JUSTICE BREYER: Because earmarking requires
that you write on a check or in an accompanying letter
that you want the money to go to something. MS. MURPHY: But actually, it does not.
JUSTICE BREYER: It does not? MS. MURPHY: Earmarking — the FEC’s
earmarking regulations are broader than that. If you
have a PAC that is going to contribute only to one
candidate, you’re not - JUSTICE BREYER: No, no. They’ll contribute
to several because they’ll get more than one contribution.
MS. MURPHY: And at that point, then you don’t have the kind of traceability you’re
talking about because there is more money coming into the
PAC than can find its way to any one particular candidate.
JUSTICE SCALIA: I would think, if you named the PAC after a particular candidate, as the
hypothetical assumes, I would be surprised if the
Federal Election Commission wouldn’t come after you for
earmarking. MS. MURPHY: That’s — that’s exactly my
point. JUSTICE KAGAN: Well, let’s say this one,
Ms. Murphy — let’s say this one, you have 100 PACs, and
each of them say that they’re going to support the five
contest — the five candidates in the most contested
Senate races. There are really only five very contested
Senate races, and 100 PACs say that they’re going to
support those five candidates. So a donor gives $5,000 to each of those 100
PACs, which support those candidates, the PAC divides up
the money, $1,000 goes to each candidate. The total -
all those PACs, $100,000 goes to each of the — of the
Senate candidates in the five most contested races, 20
times what the individual contribution limits allow.
MS. MURPHY: A couple of responses to that, Your Honor. I mean, first of all, we’re talking
about scenarios where there isn’t coordination at
all between the first person who makes a contribution
and the candidate, later on, that’s receiving it.
So - JUSTICE KAGAN: This candidate knows all of
his $100,000 donors. There are not all that many of
them. He can keep them all in his head in a mental
Rolodex. MS. MURPHY: But they’re not actually donors
to him at that point. They’re contributing to a PAC
that, in your hypothetical, is contributing to multiple
different candidates and - JUSTICE KAGAN: Five of the most contested
Senate races. So a person gives $100,000 to each of
five candidates who, if they win, become the five
senators that are most attuned to donors. And he knows
who’s giving him $100,000, each of those five senators
who gets in on the strength of these contributions that
are 20 times what the individual limits allow. MS. MURPHY: I don’t think it works to think
of these as direct contributions in excess of the base
limits because the PAC is limited itself in how much it
can contribute, so you would have to have -
JUSTICE BREYER: All we’re trying to do - because it’s hard to do in oral argument.
But what we’re trying to do in both, I think, our cases
is that we looked up all the rules and the regs — or
my law clerk did — and — and what she discovered
— and it may be wrong because I’ll look at it again
— is there has been no significant change in the earmarking
rules, in any of the rules that you’re talking about,
but for one change since Buckley.
The one change — the one change is the change that all contributions made by political
committees established by or financed or maintained or
controlled by a single person will count as one.
So what you’re seeing in these hypotheticals is, simply, the construction of precisely
the same situation that existed in Buckley while being
careful to have not one person control the 4,000 PACs,
which is pretty easy to do.
And if you want to say, is this a reality? Turn on your television set or internet because
we found instances, without naming names, where it
certainly is a reality.
MS. MURPHY: Two responses. There are changes in earmarking, more than what you’ve
suggested because the restrictions that the FEC has
put out in regulations are — are — they cover more
than the statute itself.
And specifically, they cover these instances of a PAC that is only going to be contributing
to one candidate, which is where a lot of the concern
JUSTICE KENNEDY: I just want to be clear what your answer to Justice Kagan was, her
hypothetical. Is — is part of your answer that this might
— the hypothetical that she gives — contravene
earmarking? Or -
MS. MURPHY: That’s part — it can pose both earmarking concerns and proliferation concerns,
if we’re talking about something. And if we’re talking
about a PAC that’s -
JUSTICE KENNEDY: So is part of your answer to her there that the hypothetical isn’t real
or isn’t going to happen or -
MS. MURPHY: Yes, I think - JUSTICE KENNEDY: — or can’t happen under
the existing law? Is that your answer? MS. MURPHY: That’s part of the answer. I
don’t think it’s a particularly realistic scenario under
existing regulations. JUSTICE KENNEDY: Is this — is this -
would the other side concede that this is true?
MS. MURPHY: I — I doubt they would concede that it’s true. But — you know, I think that
if you look at it, if you have a bunch of PACs that
are getting contributions from this same group of individuals,
you are going to run into earmarking and proliferation
restrictions. But the other thing I would say -
JUSTICE KAGAN: I’m sorry. You - JUSTICE SCALIA: I can’t imagine that if you
have a PAC which says we’re going to give money to
Smith, that’s bad, but if you have a PAC that says we’re
going to give all the money that you contribute to us to
Smith and Jones, that’s okay — or Smith, Jones, and
three others. It seems to me that that’s earmarking. MS. MURPHY: Exactly. It’s an earmarking
restrictions if you know that your contributions -
JUSTICE KAGAN: Ms. Murphy, if you think it’s earmarking that have a PAC that gives
money to the five most — the candidates in the five most
contested Senate races, I just don’t think any FEC would
say that that’s earmarking.
JUSTICE ALITO: Well, I may have an overly suspicious mind, but I don’t know. If I saw
100 PACs rise up and all of them said exactly the same
thing, we’re going to make contributions to the five
most contested Senate — the candidates in the
five most contested Senate races, I would be suspicious.
And maybe the FEC would also be suspicious that they didn’t just all spring up independently.
MS. MURPHY: I think that’s absolutely right. I think the FEC would be suspicious,
but - JUSTICE KENNEDY: Well, suppose — suppose
a number of PACs — I forget the number in Justice
Kagan’s example — said, we’re going to give to congressional
and senatorial candidates who — who want to cut down on
governmental spending, and we know there’s only about
four people that are like that. MS. MURPHY: Well -
(Laughter.) MS. MURPHY: I mean, at that point, I
think — you know, that — that when you have a PAC
that’s not saying to any certainty what they’re going to
do, then you — you don’t — it’s not clear you have
something to target there, because the PAC might be
spending money in different ways that are not operating
as a conduit to — for circumvention. So — you know, I think that gets, again,
to why this doesn’t have the kind of coordination
you need. JUSTICE GINSBURG: Ms. Murphy -
JUSTICE KAGAN: Ms. Murphy, can I give another one? There are 150 House candidates
with completely safe seats, all right? And there
are maybe — you know, 30 or 40 or something like
that in their party who don’t have safe seats. So
the 150 get together, and they say, we’re going to run
a joint fundraiser, and anybody can contribute $2,600
to each of these candidates, 150 of them, right? So that
makes about $400,000.
And then these 150 candidates with completely safe seats just transfer all this
money to the one person who doesn’t have a safe seat,
so that’s about $400,000. Double it for a primary and
a general election, that’s about $800,000 that all goes
to one candidate from one donor because of the ability
for candidates to transfer money to each other.
MS. MURPHY: That is not legal, Justice Kagan. The candidates do not have the ability
to transfer money to each other. They only have
- JUSTICE KAGAN: A candidate can transfer a
maximum of $2,600 to another candidate per election.
MS. MURPHY: A candidate can transfer $2,000 to a candidate per election, and that’s a
contribution - JUSTICE KAGAN: I stand corrected on the
basis of $600. MS. MURPHY: That’s a hard contribution
limit on how much they can contribute. But — but I
think all of this also gets to another problem, which is
there’s an overbreadth problem here, because if — if
you’re talking about this scenario, in your scenario,
there’s only one person who can even make a contribution
at that point after the first $2,600 is received -
JUSTICE KAGAN: You’re exactly right. You’re exactly right, Ms. Murphy. One person
could make an $800,000 contribution to a House race,
where $800,000 goes a long way. And then what these 150 candidates
can do is they can do it for every single other
candidate in a contested seat. So take your 30 or 40 House
contested seats, and it becomes a conduit for a single
person to make an $800,000 contribution to a candidate
in a contested district.
MS. MURPHY: I mean, I think, even if you accept this scenario where all of these candidates
are independently deciding to give all their money
to one candidate, you can’t have a law that is designed
to prevent this one person from circumvention
by prohibiting everybody else from engaging in
contributions that don’t - JUSTICE GINSBURG: Ms. Murphy, on the
“everyone else,” can you give us an idea of whose
expression is at stake? I mean, most people couldn’t
come even near the — the limit. So what percentage -
is there any information on what percentage of all
contributors are able to contribute over the aggregate -
MS. MURPHY: I don’t have a percentage on how many are able. I mean, we aren’t talking
about a large number of individuals. We certainly
are talking about more individuals than whose First Amendment
rights were implicated by the provision at issue
in Davis, for example.
JUSTICE SCALIA: I assume that a law that only — only prohibits the speech of 2 percent
of the country is okay.
MS. MURPHY: Absolutely not. I mean - JUSTICE SCALIA: Oh, it isn’t?
CHIEF JUSTICE ROBERTS: Ms. Murphy, we haven’t talked yet about the effect of the
aggregate limits on the ability of donors to give the
minimum amount to as many candidates as they want.
The effect of the aggregate limits is to limit someone’s
contribution of the maximum amount to about nine
candidates, right? MS. MURPHY: That’s right. If you’re
talking about a general - CHIEF JUSTICE ROBERTS: Is there — is there
a way to eliminate that aspect while retaining some of
the aggregate limits? In other words, is that a
necessary consequence of any way you have aggregate
limits? Or are there alternative ways of enforcing the
aggregate limitation that don’t have that consequence?
MS. MURPHY: Well, it’s certainly a necessary consequence of BCRA’s scheme, in
which there’s a distinct aggregate limit on contributions
to candidates alone. I think, though, aggregate
limits in general are always going to have this effect
of prohibiting people from giving contributions
that don’t, themselves, give rise to quid pro quo corruption
concerns. And that’s why, if the government is really
concerned about the things it’s talking about, there are
narrower avenues to get at them. If the concern is
joint fundraising committees, you could have -
JUSTICE SOTOMAYOR: I’m a little confused, okay? I’m confused because we’re talking in
the abstract. This decision was based on a motion
to dismiss, and there is a huge colloquy about
what happens and doesn’t happen. We don’t have a record
below. MS. MURPHY: Well -
JUSTICE SOTOMAYOR: I mean, I can go into the news, as Justice Breyer suggested. It’s
very hard to think that any candidate doesn’t know the
contributor who has enough money to give, not only to
himself or herself, but to any of his or her affiliates
who are supporting him or her.
I mean, it’s nearly common sense, hard to dispute. So you’re saying it can’t happen,
but I don’t see charges of coordination going on that
much. MS. MURPHY: I guess I’m not sure what
you’re talking about happening. I mean, if you’re just
talking about knowing that some individuals are making
contributions to other candidates or State parties who
are not going to share those contributions with a
particular candidate, then I don’t see how that — or
gives rise to any corruption or circumvention concern.
JUSTICE BREYER: Here is the actual ad - the actual ad. I won’t name the candidate.
You see a picture of the candidate. There is a sign
that says “Smith PAC.” Okay? That’s what it says. And
then it says, “Make a donation to help Smith PAC support
Republican,” if you like, or “Democratic candidates.” Period. And then they have an address. All
right. Now, it doesn’t take a genius to figure out
what they’re going to do with the money and that maybe
Smith will get a pretty good share of it. Now, if Smith
has 400 people who figure this out, he will have 400
times 5,000 times one person. Now, you say that really couldn’t happen
because of the designation. We haven’t found a
designation rule that would stop it. But then Justice
Sotomayor is saying, I don’t know. And I don’t either
because there’s been no hearing, there’s been no
evidence presented. There is nothing but dismissal. MS. MURPHY: Two points, Your Honor. First
of all, the case was briefed on cross-motion for
injunctive relief, so the government had an opportunity
to make a record, and it chose to treat this as a legal
case, not as one in which - JUSTICE SCALIA: Ms. Murphy, do — do we
need a record to figure out issues of law? MS. MURPHY: And that’s my second point.
Really, this is - JUSTICE SCALIA: No, no. I agree.
(Laughter.) JUSTICE SCALIA: I agree — I agree that -
that this campaign finance law is so intricate that I
can’t figure it out. It might have been nice to have
the — you know, the lower court tell me what the law
is. But we don’t normally require a record to decide
questions of law. MS. MURPHY: And you shouldn’t need one here
either because these limits are facially over- and
under-inclusive. They’re not closely tailored and
evidence can’t - JUSTICE SOTOMAYOR: You’re taking a
position — you’re taking a position that the law stops
corruption. And you’re suggesting that the government
is incapable of showing facts that the law doesn’t work?
MS. MURPHY: I’m suggesting that - JUSTICE SOTOMAYOR: As it is? Don’t you
need facts to prove that or disprove that proposition?
MS. MURPHY: Even if the government could prove that proposition, there would still
be an over and under-breadth problem.
If I may, I’d like to reserve the remainder of my time.
CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Burchfield.
ORAL ARGUMENT OF BOBBY R. BURCHFIELD, FOR SENATOR MITCH McCONNELL,
AS AMICUS CURIAE, SUPPORTING APPELLANTS MR. BURCHFIELD: Mr. Chief Justice, and may
it please the Court: Senator McConnell agrees that this aggregate
limit does not pass exacting scrutiny. Senator McConnell believes that all restrictions of
this nature should be reviewed under strict scrutiny.
To begin with, this is a severe restriction on political
speech. It -
JUSTICE GINSBURG: Mr. Burchfield, I’d like you to address this question about the restriction
on speech. It has been argued that these limits
promote expression, promote democratic participation
because what they require the candidate to do is,
instead of concentrating fundraising on the super-affluent,
the candidate would then have to try to raise
money more broadly in the electorate.
So that, 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
MR. BURCHFIELD: Your Honor, I disagree with that, for this reason. First of all, this
limit — the aggregate limit on political parties places
like-minded political parties in the position of competing
against each other, rather than collaborating against
All the national political parties on the Republican side and the State political parties
compete against each other for an artificially limited
pool of money from each contributor.
The same is true on the candidate side. They compete against each other for the same
artificially limited pool of money, even though each
individual contribution to the candidate or to the party
is limited by the base limits. The Federal Election Commission
regulations — and, Justice Breyer, I would — I would
propose that you look at Section 110.1(h), which
specifically — which specifically prohibits a PAC of
the nature you describe. If a person contributes to a PAC with
knowledge his contribution is going to a particular candidate, that is an earmark under the — under
the precedents of the Federal Election Commission.
JUSTICE SCALIA: Counsel, is it — is it correct that the consequence of this provision
has been very severe with respect to national political
parties? MR. BURCHFIELD: It is, Your Honor,
particularly in the current environment where the
national political parties are — are being marginalized
outside forces. JUSTICE SCALIA: And — and much of the
money that used to go to them now goes to PACs; isn’t
that what has happened? MR. BURCHFIELD: Exactly right, Your Honor.
JUSTICE SCALIA: So that this is really - you know, turning the dials on — on regulating
elections. Now, I ask myself, why would — why would
members of Congress want to hurt their political parties? And I answer — I answer to myself
JUSTICE SCALIA: — well, ordinarily, the national political parties will devote their
money to elections in those States where the incumbent
has a good chance of losing. So, in fact, if you’re an
incumbent who cares about political parties, I don’t
want money to go to my opponents.
And if you — if you turn down the amount of
money that the national political parties have,
that’s — that much less money that can be devoted
against you if you’re challenged in a close race. Isn’t
that the consequence of this? MR. BURCHFIELD: Let me see you and raise
you one. There are separate limits here, Your Honor,
for candidates and for political parties. The effect of
this is to insulate the incumbents from competing with
the political parties for the dollars. And by imposing
a cap on the candidate — on the amount candidates can
raise, the incumbents realized that they’re the favored
class among — among candidates who are going to be
getting the contributions. JUSTICE SCALIA: What a surprise.
JUSTICE GINSBURG: Has it worked out that way in practice? Has it worked out — because
there was one brief at least saying no, that — that
that’s wrong. In fact, it’s the challengers who are aided.
MR. BURCHFIELD: Well, Your Honor, I think it is — it is — there’s a hard cap on the
number any contributor can give to all candidates, and
a separate cap on the amount that contributor can give
to all party committees.
JUSTICE BREYER: So — so I read in one summer before BCRA — I spent several weeks
reading the record before the district court in that very
lengthy case on this.
And it was filled with testimony by senators and congressmen that a handful of people can
give hundreds of thousands of dollars, they know
who those people are and that those people do have undue
influence, which means, in First Amendment terms, that
the individual who, in fact, has wonderful ideas and
convinces others, even by paying three cents to buy the
internet or something, hasn’t a shot because it will
influence people, not ideas, but the money. Now, there
was a record on that. Here, there is no record showing whether
this aspect does or does not have the same tendency.
That is why I ask: How can I decide this on the basis
of theory when the record previously showed the contrary
of what’s been argued and, in fact, at least might show
that even in respect to these limits? MR. BURCHFIELD: Well, Your — Your Honor,
this case comes to the Court as an as-applied challenge.
Mr. McCutcheon does not want to go through — does not
want to go through the committees you’re talking about.
He wants to write checks directly to the candidates and
directly to the committees. He is constrained by the
aggregate limit. JUSTICE GINSBURG: But he can — he can
write checks to everyone that he wants to write checks
to. It’s just he can’t give his special number of 1776.
MR. BURCHFIELD: If — if he wanted to give a contribution to every candidate running
for a Federal congressional seat — congressional and Senate,
he would be limited to $86 or some — some number like
that. JUSTICE GINSBURG: In his own case, it would
be something over $1,000, right? Because he identified
12 more candidates that he’d like to give 1776 to, but
he could give each of them over $1,000. MR. BURCHFIELD: Your Honor, he could. But,
again, you’re — you’re diminishing his right to
associate and the intensity of his association by
applying this aggregate limit. JUSTICE KAGAN: Mr. Burchfield, if you take
off the aggregate limits, people will be allowed, if you
put together the national committees and all the State
committees and all the candidates in the House and the
Senate, it comes to over $3.5 million. So I can write checks totalling $3.5 million
to the Republican Party committees and all its
candidates or to the Democratic Party committees and all
its committees, even before I start writing checks to
independent PACs. Now, having written a check to — for 3.5
or so million dollars to a single party’s candidates,
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?
Because I thought that that was exactly what we said in McConnell, that, when we talked
about soft money restrictions, we understood that you
give $3.5 million, you get a very, very special
place at the table. So this is effectively to — to reintroduce
the soft money scheme of McConnell, isn’t it?
MR. BURCHFIELD: No. No, Your Honor, it is absolutely not because McConnell dealt with
the situations where there were — you were not
considering the base limits. The soft money, by definition,
was not subject to the base limits.
To take your example of the joint fundraising committee, the joint fundraising
regulation, which consumes more than three pages in the
— in the Federal Code of Federal Regulations — it’s
at 102.17(c) — it specifically reaffirms the
base limits. It specifically reaffirms the anti-earmarking
restriction, and it says that the joint fundraising committee must inform all contributors of
So, again, it’s the situation where the money leaves the contributor’s hands, he loses
control over it, and the person who receives it makes
JUSTICE KAGAN: But the money — but the money goes to a single party. And indeed,
I could make this even worse. I could say, let’s say the
Speaker of the House or the Majority Leader of the House
solicits this money from particular people, so solicits
somebody to ante up his $3.6 million.
And then — you know, Justice Kennedy said in McConnell the making of a solicited gift
is a quid both to the recipient of the money and to
the one who solicits the payment. So the Speaker, the
Majority Leader, can solicit $3.6 million to all the
party members, and you’re telling me there’s just
no special influence that goes along with that?
MR. BURCHFIELD: Well, we know from the Citizens United decision, Your Honor, that
gratitude and influence are not considered to be quid pro
quo corruption, so I think that’s what you’re
talking about. That is not the sort of corruption that
would sustain this limit, especially in light of the
severe restrictions on speech and association that it
imposes as the political parties compete against each
other and as they — and as — as the candidates have to
compete against each other. Justice Alito -
JUSTICE ALITO: In Buckley, the Court sustained — sustained aggregate limits. What
has changed since Buckley?
MR. BURCHFIELD: Your Honor, the — the statute has changed significantly to impose
base limits on the parties, to impose — on both the State
and - and Federal parties. It has changed to prohibit
proliferation of political committees. One of the concerns in Buckley was the dairy
industry, which contributed to hundreds of PACs
supporting President Nixon’s re-election. That is no
longer possible. JUSTICE ALITO: Those were all created by
the dairy industry or by the Nixon campaign; is that
correct? MR. BURCHFIELD: That’s not — as I
understand — as I read the lower court decision in
Buckley, that is correct. In addition, you also have -
you also have a thick volume - JUSTICE SOTOMAYOR: Then how is it that -
sorry. MR. BURCHFIELD: In addition, you also
have — you also have a thick volume — you have a thick
volume of the Code of Federal Regulations of the Federal
Election Commission, which did not exist at the time of
Buckley. CHIEF JUSTICE ROBERTS: Thank you, counsel.
MR. BURCHFIELD: Thank you, Your Honor. CHIEF JUSTICE ROBERTS: General Verrilli.
ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE APPELLEE
GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court:
Aggregate limits combat corruption. Let me start by explaining exactly how. Aggregate
limits combat corruption both by blocking circumvention
of individual contribution limits and, equally,
fundamentally, by serving as a bulwark against a
campaign finance system dominated by massive individual
contributions in which the dangers of quid pro quo
corruption would be obvious and inherent and the
corrosive appearance of corruption would be overwhelming.
Now, the Appellants in this case have tried to present the case as though the issue were
whether there were some corrupting potential in giving
contribution to the nineteenth candidate after someone
has already contributed to — the maximum to the
eighteenth. But that is not what this case is about.
The Appellants are not arguing that the aggregate limit is drawn in the wrong place.
They are arguing that there can be no aggregate limit
because the base contribution limits do all the work.
And so what that means is that you — you’re taking the
lid off the aggregate contribution limit, and as Justice
Kagan and her question earlier indicated, that means
that an individual can contribute, every two years,
up to $3.6 million to candidates for a party, party
national committees and state committees -
CHIEF JUSTICE ROBERTS: That’s because they can transfer the funds among themselves and
to a particular candidate. Is — is the possibility
of prohibiting those transfers perhaps a way
of protecting against that corruption appearance while,
at the same time, allowing an individual to contribute
to however many House candidates he wants to contribute
to? I mean, the concern is you have somebody who
is very interested, say, in environmental regulation,
and very interested in gun control. The current system,
the way the anti-aggregation system works, is he’s got
to choose. Is he going to express his belief in
environmental regulation by donating to more than nine
people there? Or is he going to choose the gun control
issue? GENERAL VERRILLI: So, Mr. Chief Justice, I
want to make two different points in response to that
question. The first is that restricting transfers would
have a bearing on the circumvention problems. It
wouldn’t eliminate all circumvention risk, but would
have a bearing on that problem. But there is a more fundamental problem
here. It’s a problem analogous to the one that was at
issue with soft money in McConnell, which is the very
fact of delivering a $3.6 million check to the -
whoever it is, the Speaker of the House, the Senate
Majority Leader, whoever it is who solicits that check,
the very fact of delivering that check creates the
inherent opportunity for quid pro quo corruption, exactly the kind of risk that the Court identified
in Buckley, wholly apart from where that money
goes after it’s delivered.
But the delivery of it - CHIEF JUSTICE ROBERTS: What — what is the
framework — what is the framework for analyzing — I
agree with you on the aggregation, but it has this
consequence with respect to limiting how many candidates
an individual can support within the limits that
Congress has said don’t present any danger of
corruption? So what is the framework for analyzing that?
Give you your argument with respect to the transfers and
the appearance there, but it does have that other
consequence on something we’ve recognized as a
significant right. So - GENERAL VERRILLI: Let me make a specific
point about that and then work into the framework. The
specific point is this: The — the aggregate limit
would have the effect of restricting the ability of a
contributor to make the maximum contribution to more
than a certain number of candidates. That’s true. We
can’t help but acknowledge that. It’s math. But that doesn’t mean that that individual
cannot spend as much as the individual wants on
independent expenditures to try to advance the interest
of those candidates or the interests or the causes that
those candidates stand for. Mr. McCutcheon, for example, can spend as
much of his considerable fortune as he wants on
independent expenditure advocating the election of these
candidates. JUSTICE SCALIA: And that does not — that
does not evoke any gratitude on the part of the people?
I mean, if gratitude is — is corruption — you know,
don’t those independent expenditures evoke gratitude?
And is — is not the evil of big money — 3.2 million,
an individual can give that to an independent PAC and
spend it, right? GENERAL VERRILLI: The foundation -
JUSTICE SCALIA: It’s not that we’re stopping people from spending big money on
politics. MR. BURCHFIELD: The foundation of this
Court’s jurisprudence in this area is the careful line
between independent expenditures, which this Court has
held repeatedly, do not create a sufficient risk of quid
pro quo — quid pro quo corruption to justify their
regulation, and contributions which do. JUSTICE SCALIA: Wait. That — that -
MR. BURCHFIELD: So we’re not talk - JUSTICE SCALIA: That line eliminates some
of the arguments that have been made here, which are
arguments against big money in politics. There — big
money can be in politics. The thing is you can’t give
it to the Republican Party or the Democratic Party, but
you can start your own PAC. That’s perfectly good. I’m
not sure that that’s a benefit to our political system.
GENERAL VERRILLI: Well, I do think we have limits on contributions to political parties,
in addition to limits on contributions to candidates.
And I think that does help establish the point
here, which is that candidates are not hermetically sealed
off from each other, and parties are not hermetically
sealed off from candidates.
They — you know, they’re all on the same team. And we limit the amount that an — that
an individual can contribute to a political party,
as well as the amount that an individual can contribute
to candidates -
JUSTICE BREYER: That actually does very much — while I don’t — I’m looking for an
answer here. It’s not that I have one at all. It is rather
basic, the point I think that’s being made now. I
mean, as I understand it, the whole reason — it is no
doubt that campaign limits take an ordinary person, and
they say, You cannot give more than such-and-such an
amount. There are apparently, from the Internet, 200
people in the United States who would like to give
$117,000 or more. We’re telling them, you can’t; you
can’t support your beliefs. That is a First Amendment
negative. But that tends to be justified on the other
side by the First Amendment positive because, if the
average person thinks that what he says, exercising his
First Amendment rights, just can’t have an impact
through public opinion upon his representative, he says,
what is the point of the First Amendment? And that’s a
First Amendment point. All right. So that’s basic, I
think. Now, once that’s so, Congress has leeway.
And you are saying — and I have seen all over the
place, that that’s why we don’t want those 200 people to
spend more than 117- or 120,000 because the average
person thinks the election is — after the election, all
the actions are affected by the pocketbook and not by
the merits of the First Amendment arguments. Okay. And now, you say the person can do
the same thing anyway; just call it independent. And
what independent does, he can spend 40 million. He can
spend 50 million. And all that does is sort of mix up
the messages because the parties can’t control it.
Now, that’s, I think, the question that’s being asked. And I think that that is a very
serious question, and I’d like to know what flows
from it. Is it true? So what? What are we supposed to
do? What is your opinion about that question?
JUSTICE KENNEDY: And I have the same question. You have two — two persons. One
person gives an amount to a candidate that’s limited.
The other takes out ads, uncoordinated, just all
on his own, costing $500,000.
Don’t you think that second person has more access to the candidate who’s — when the
candidate is successful, than the first? I think that was
at the root of Justice Scalia’s question and Justice
Breyer’s. GENERAL VERRILLI: Let me try to answer this
with an analogy, if I could, Justice Kennedy. I think the right way to think about it is
this, if somebody thinks the Secretary of Defense is
doing a great job, they can take out an ad in the
Washington Post, spend $500,000 on that ad saying, the
Secretary of Defense has done a great job. And — and
they would have an undoubted First Amendment right to do
that. No one could think that there’s a content — it’s
hard to imagine a content-neutral justification for
prohibiting that speech. But if, instead, the person wanted to
express their symbolic - JUSTICE SCALIA: What if Boeing does it? I
mean, you know - GENERAL VERRILLI: I still think -
JUSTICE SCALIA: You think, no problem? GENERAL VERRILLI: — that would be an
independent expression. But if, instead, somebody wanted to express symbolically their view
that the Secretary of Defense has done a great job
by giving the Secretary of Defense a Maserati, nobody would
think that there was a First Amendment ground that could
be — that could be invoked.
JUSTICE ALITO: But we are talking here about — we’re talking here about campaign
contributions. Isn’t it illegal for a candidate to take
campaign contributions and use it to buy a Maserati?
GENERAL VERRILLI: We — yes, it is, but the point -
JUSTICE ALITO: Well, then I don’t see how that — that really gets to the point.
GENERAL VERRILLI: But — it get — I think it does, if I may, Justice Alito, because
I think that the point is that the — that the rule against
gifts, the conflict of interest rules, they exist
to advance a content-neutral government interest of the
highest importance. That -
JUSTICE ALITO: Well, what troubles me about your — what troubles me about your argument,
General Verrilli, and about the district court’s opinion
is that what I see are wild hypotheticals that are
not, obviously, plausible or — and lack — certainly
lack any empirical support.
Now, you’ve — you’ve chosen to use the same hypothetical the district court used about
the $3.5 million contribution that would be — that
could be given by a coordinate — which involves all
of the House candidates and all of the Senate candidates
in a particular year getting together with all
of the — all of the parties’ national party committees,
plus all of the State party committees, and then — and
that’s how you get up to the $3.5 million figure; isn’t
that right? GENERAL VERRILLI: Yes.
JUSTICE ALITO: Now, how — how realistic is that? How realistic is it that all of the
State party committees, for example, are going to get
money and they’re all going to transfer it to one candidate?
For 49 of them, it’s going to be a candidate who is not in their own State. And there are
virtually no instances of State party committees contributing
to candidates from another State.
And the other part of it that seems dubious, on its face, is that all of the party — all
of the candidates for the House and the Senate of
a particular party are going to get together, and they
are going to transfer money to one candidate. There really
— you cited in your brief the example — best examples,
I take it, of — of contributions from some candidates
to other candidates. They are very small. Isn’t that
true? GENERAL VERRILLI: Yes. But I think there
are two — Justice Alito, I think that, with all due
respect, I think the point Your Honor is making confuses
two different ways in which these laws combat the risk
of corruption. The first one is that the — the handing
over of the large check and whether it’s a $3.6 million
check for everyone or a $2.2 million check for the House
candidates or a $1 million check for all the State
committees, the very — just as the Court found in
McConnell, with respect to massive soft money contributions and the inherent risks of — of
corruption there, there’s an inherent risk of corruption.
And that’s why, indeed, as I said, we have limits on how much we can contribute to a
political party for that reason -
JUSTICE ALITO: Well, I don’t understand that -
GENERAL VERRILLI: — and that’s apart from how it gets transferred.
JUSTICE ALITO: Unless the money is transferred to — you have to get it from
the person who wants to corrupt to the person who is going
to be corrupted. And unless the money can make it
from A to B, I don’t see where the quid pro quo argument
is. GENERAL VERRILLI: Well, I think that the —
I think that the way these joint fundraising committees
work is you hand over a single check to a candidate who
solicits it. Now, it could be any candidate who sets up
a joint fundraising committee, says, give to me and give
to the rest of my team. And that’s — so the handing over the check
to that candidate is a — seems to me — you know,
creates a significant risk of indebtedness on the part
of that candidate, even though a lot of the money is
flowing through to others. In addition, the party leaders are often
going to be the ones who solicit those contributions, and they’re going to be — have a particular
indebtedness to candidates because, of course, their
power, their authority depends on the party retaining
or — or gaining a majority in the legislature. And so they’re going to feel a particular
sense of indebtedness, that this person is helping, not
only them, but everybody - JUSTICE ALITO: I understand -
GENERAL VERRILLI: — in these massive amounts and then — I’m sorry, if I may just
make my third point, Mr. Chief Justice?
CHIEF JUSTICE ROBERTS: Sure. GENERAL VERRILLI: And then the third point
I think is that every — every candidate in the party is
going to be affected by this because every candidate is
going to get a slice of the money, and every candidate
is going to know that this person who wrote the
multimillion dollar check has helped, not only the
candidate, but the whole team, and that creates a
particular sense of indebtedness. And, of course, every member of the party
is likely to — every — every officeholder in
the party is likely to be leaned on by the party leadership
to deliver legislation to the people who are
buttering their bread.
JUSTICE ALITO: These — these aggregate limits might not all stand or fall together.
Let - just take this example, if you can just take
a minute and walk me through this step-by-step.
You have somebody who wants to corrupt a member of the House, and this person’s strategy
is to make contributions to multiple House candidates
with the hope, the expectation, the plan that those
candidates are going to transfer — transfer the money
to the - the member that this person wants to corrupt.
Now, how is that person going to accomplish that, given the earmarking regulations, and
— and the limits on how much one member can contribute
to another? GENERAL VERRILLI: So — you know, I think
that that — I think it’s possible, but I think, if
somebody had that goal, that circumvention goal, but by
far better ways of achieving it would be giving significant — and you’ve taken the aggregate
caps off — would be making significant contributions
to State parties and national parties who are
free to transfer money among themselves without restriction,
and by — and by making contributions to PACs.
And so - JUSTICE ALITO: Well, if you’re — I mean,
if you’re not going to defend the application of the
aggregate limits in that situation, doesn’t it follow
that, as applied to that situation, these are — these
are unconstitutional? GENERAL VERRILLI: No. No, I don’t think
so. I think it — I think it — I think it — first of
all, I think it could happen in that situation, but I
think it’s more likely to happen in those -
JUSTICE ALITO: Well, then just explain to me how it’s going to be done. The person gives
to member A with the hope that member A is going
to give it to member B. If the person even implies, when
making the contribution to A, that person wants it
to go to B, that’s earmarked. So how is this going to
be done? GENERAL VERRILLI: Well, I think — well,
I — in McConnell and in Colorado Republican to this
Court said that earmarking is not the outer limit of the
government’s authority to regulate here. And the reason
the Court said that is because a lot of this can be done
with winks and nods and subtly. And so I — and so I
don’t think it’s the case that earmarking would work to
prohibit that. But I also think that the — when we’re
talking about aggregate limits, they’re part of an
overall system of regulation. And I think that they
work to keep the — to keep the circumvention risk in
check, and they work to make sure that you don’t have
the kind of problem that you identified in McConnell.
JUSTICE BREYER: So what would you think? I was just listening to your dialogue, and you
heard - this is pretty tough, we try to construct
some hypotheticals, and — and the counsel says,
oh, I’ve got this part wrong or that part wrong or the
other one, and they may be right. And we can’t do this, figuring
out all these factual things in an hour, frankly.
And they may be right. I’m not sure. There hasn’t been a full hearing. It seemed to me
there are things to explore in respect to the circumvention.
Who is right? Should you change the hypothetical
slightly, or what? There are things to explore in respect
to the question of whether being able to write a
$3.6 million check to a lot of people does leave the average
person to think, my First Amendment speech, in terms
of influencing my representative, means nothing.
There are things to explore in terms of the relationship between what is permissible;
namely, spend $40 million independently. And what isn’t
permissible; namely, spending more than 117,000. None of
these have been considered. They would seem relevant.
So what do you think about going into these matters in a district court where the evidentiary
aspects of them can be explored at some length? GENERAL VERRILLI: Well, I think,
Justice Breyer, that the statute can be upheld under the
current state of the record. I understand and take Your
Honor’s point. But I do think that you had a substantial
record in Buckley, you had a substantial record in
McConnell, but that substantial record bears directly on
the question of whether massive aggregate contributions
pose the inherent danger of corruption and the corrosive
appearance of corruption and that the case can be
decided on that basis. JUSTICE GINSBURG: General Verrilli, the
Government in the proceeding below didn’t suggest in
response to the — to the proceedings before the
three-judge court that an evidentiary hearing was -
both sides seem to treat this as a matter that could be
disposed of without an evidentiary hearing; is that
right? GENERAL VERRILLI: That’s correct, Your
Honor. JUSTICE GINSBURG: There’s the point that
the Chief made about what this does is limit particularly on the national strategy. It
drives contributions towards the PACs and away from
the parties, that money — without these limits,
the money would flow to the candidate, to the party
organization, but now, instead, it’s going to the PACs.
What is your response to that? GENERAL VERRILLI: Well, the — we take the
constitutional First Amendment framework of this Court’s
decisions as a given. The Court has — the Court has
determined that independent expenditures do not present
a risk of quid pro quo corruption that allows their
regulation; that contributions — direct contributions to candidates and to parties can pose that
risk - JUSTICE SCALIA: That’s fine. They’re
regulated. That’s the law, but the question says -
what the question is directed at, given that that’s the
law, isn’t the consequence of — of this particular provision to sap the vitality of political
parties and to encourage — what should I say — you know,
drive-by PACs for each election? Isn’t — isn’t that
GENERAL VERRILLI: So I think the answer is we don’t know, one way or another, whether
that’s the consequence, but we -
JUSTICE SCALIA: I think we do. GENERAL VERRILLI: Well, I don’t — with all
due respect, Justice Scalia, I don’t think we do. The
parties still raise and spend very substantial amounts
of money, and so I don’t think that — that we know.
But beyond that, what — the Congress has made a determination that there is a real
risk of quid pro quo corruption and — the appearance of
quid pro quo corruption here and has regulated with respect
to that risk, and Congress is, of course, free to
take this into consideration.
JUSTICE SCALIA: You say — you say it’s $3.5 million. If you assume somebody that
gives the maximum to every possible candidate and party
he can contribute to throughout the United States,
3.5 million. Just to put that in perspective, how much
money is spent by political parties and PACs in all elections
throughout the country - GENERAL VERRILLI: Well, I think that’s -
JUSTICE SCALIA: — in one election cycle? GENERAL VERRILLI: I think that’s a good
point, Justice Scalia. I think it helps illustrate -
JUSTICE SCALIA: Do you — Do you have any idea much?
GENERAL VERRILLI: I do, I do. Take the 2010 election. It’s a non-presidential year.
Each party spent — parties and candidates together,
on each side, spent approximately $1.5 billion.
JUSTICE SCALIA: 1.5 billion. GENERAL VERRILLI: Right.
JUSTICE SCALIA: And what about PACs? GENERAL VERRILLI: That — that, I don’t
have specifics for, but if that were - JUSTICE SCALIA: Oh, but that was a lot in
the last few elections, wasn’t it? GENERAL VERRILLI: But — but the parties -
but here’s the problem - JUSTICE SCALIA: And — and what about
newspapers that — that spend a lot of money in
endorsing candidates and promoting their candidacy. I
suppose — you know, you — you have to put in that
money, too. That is money that is directed to political
speech. When you add all that — add — when you add
all that up, I don’t think 3.5 million is a heck of a
lot of money - GENERAL VERRILLI: I don’t think -
JUSTICE SCALIA: — spread throughout the country.
GENERAL VERRILLI: I don’t think that’s the right way to look at it, Your Honor. If you
think that a party’s got to get $1.5 billion together
to run a congressional campaign, parties and candidates
together, and you’ve got a maximum of $3.6 million,
that is about 450 people you need to round up. Less than
500 people can fund the whole shooting match.
And that, I think, is part of the problem here, is that you are going to create a situation,
if you take off the aggregate limits, in which
there is a very real risk that — that both — 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.
And that is why we have these aggregate limits and why they need to remain in place.
CHIEF JUSTICE ROBERTS: But the — the consequence is — just to get back to my prior
question, the consequence is you are telling somebody
who doesn’t want to give 3.4 million, but wants to contribute
to more than nine House candidates, just up to
the maximum, which would be the $5,000 per the double cycle,
you are telling him that he can’t make that contribution,
however modest, certainly within the limits Congress has
said does not present the problem of corruption, to a
tenth candidate. I appreciate the argument you are making
about the 3-point-whatever million-dollar check and the
need for the aggregate limits to address that. I
understand that point. But what do you do with the flip
side? I mean, you can’t pretend that that is pursued
with no First Amendment cost quite apart from the one
that’s there. It seems to me a very direct restriction on
much smaller contributions that Congress said do not
present a problem with corruption. GENERAL VERRILLI: I take that point,
Mr. Chief Justice. But I think the right — you asked
earlier about the right analytical framework. I think
the right analytical framework under the First Amendment
is to think about this in terms of content neutrality.
The government’s interest in preventing corruption and the appearance of corruption,
which is why I brought up the example of the Maserati
to the Secretary of Defense, is an entirely content-neutral
justification - CHIEF JUSTICE ROBERTS: No, but that
wouldn’t — doesn’t normally get you very far on the
First Amendment. You could not have a rule that says
the — the Post or the New York Times can only endorse
nine candidates - GENERAL VERRILLI: No -
CHIEF JUSTICE ROBERTS: — because — I mean, it’s completely content neutral; you
don’t care who the tenth is, but that — that limit would
not be - GENERAL VERRILLI: I would think that would
be a content-based justification because the — you are
not — you are not trying to prevent corruption or the
appearance of corruption by doing that, and there is no
other neutral justification that I can think of for why
you would impose such a rule. But the point is, with respect to elected
officials and the giving of money to the elected officials, there is this content-neutral justification
that just doesn’t exist with respect to any other entity
out there in the world. And, yes, it is not free of First Amendment
costs and we acknowledge that, but — but that cost is
mitigated in that this is not a prohibition, that you
can — you can’t make it at the maximum, but you can
make less. And then you have all the - CHIEF JUSTICE ROBERTS: Is there — is there
any way to prevent the concern you have about the
3-point-whatever-it-is million-dollar check without
imposing the limit on the person who wants to support
ten candidates, rather than one? GENERAL VERRILLI: Well, I suppose you could
try to calculate an aggregate contribution limit that is
different and higher than the one that is here now, but
the problem with that is that the Appellants are not
making that argument. They’re making the argument that you cannot
have — the only argument they’ve made in this case is
that you cannot have aggregate limits because base
contribution limits do all the work. JUSTICE ALITO: Well, they are making -
they are making the argument that there are — that the
regulations that already exist about transfers from one
entity to another prevent a lot of what you’re complaining — what you’re — what you are
But if they are not sufficient, they could be bolstered. The aggregate limits are a very
blunt way of trying to get out — get at the problem
that you are — that you are worried about. That’s
What — are — is that wrong? There is nothing more that could be done to prevent
transfers from joint fundraising committees or from
one member to another or from State parties to candidates?
GENERAL VERRILLI: So, again, I apologize for repeating myself, Justice Alito, but circumvention
is not the only problem. The delivery of the — the
solicitation and receipt of these very large checks is a
problem, a direct corruption problem, and none of the
alternatives that the Appellant’s have identified address that problem.
JUSTICE ALITO: I just don’t understand that. You mean, at the time when the person
sends the money to this hypothetical joint fundraising
committee, there is a corruption problem immediately,
even though — what if they just took the money
and they burned it? That would be a corruption problem
there? GENERAL VERRILLI: Well, they’re not — they
are not going to burn it. CHIEF JUSTICE ROBERTS: Well, all right.
But — so then - GENERAL VERRILLI: And — but — and that’s
the point. They’re not going to burn it. They need it.
JUSTICE ALITO: When does the corruption - yes. When does the corruption occur? It occurs
when it’s transferred to — to the person who has
power and — and they want to corrupt.
GENERAL VERRILLI: I — I beg to differ, Your Honor. I think what it does is create
the sense of indebtedness on the part of the recipient
and on a part of the party leadership when it’s delivered,
and — and that’s the inherent risks of corruption in
It’s — it’s quite parallel to McConnell. It’s why we have aggregate limits on what
you can give to a party because these people are not hermetically
sealed off from each other. They are all on the same
team. They all have an interest in each other’s success. And so party leaders, in particular,
are going to feel a sense of indebtedness, and their
less restrictive alternatives don’t deal with that.
But now, going — if I could, I will try to address the circumvention problem. You know,
they - what they have done is come up with a whole
series of things that you would have to — there is
not one thing that you would have to do to take care of
this problem. You would have to say no transfers. You
would have to say segregated accounts. You would have
to say no giving money to PACs who have indicated that
they are going to give money to candidates once you have
already given money. You’re going to have to do five or six
things to deal with the risks of corruption. The idea
that that is a less-restrictive means — it seems to me
like a significantly more restrictive means, and it’s
going to impose First Amendment costs of its own.
I’m sure the PACs are going to say, what do you mean we can’t say who we want to give
money to? We have a right to do that. So -
JUSTICE SCALIA: General Verrilli, it seems to me — it seems to me fanciful to think
that the sense of gratitude that an individual senator or
congressman is going to feel because of a substantial
contribution to the Republican National Committee or Democratic
National Committee is any greater than the sense of
gratitude that that senator or congressman will feel to
a PAC which is spending enormous amount of money in his
district or in his State for his election. I mean, it seems to me the latter is much
more identifiable, and there is nothing in the law that
excludes that. So apparently, that’s not too much of a
risk. GENERAL VERRILLI: Well, Justice Scalia, I’m
not here to debate the question of whether the Court’s
jurisprudence is correct with respect to the risks of
corruption from independent expenditures. JUSTICE SCALIA: It is what it is, though.
GENERAL VERRILLI: But we accept it and - and the line is that there — in this Court’s
jurisprudence, that there is an unacceptable risk when
contributions are too high. And if I may just say this
in conclusion - JUSTICE KENNEDY: Okay. But so your answer
to the questions that have been put previously from -
from me and Justice Breyer and Justice Scalia is that’s
the law? GENERAL VERRILLI: It’s — well -
JUSTICE KENNEDY: I mean, that’s — just to be fair, that’s — I’m — I’m coming — I’m
coming off the bench -
GENERAL VERRILLI: Congress isn’t - JUSTICE KENNEDY: — with the understanding
that your answer is Buckley has settled that issue; no
more discussion necessary? GENERAL VERRILLI: The — the risk — we -
we think the risk of corruption is real. And we think
it’s, in fact, profound when you are talking about the
kinds of contributions that can be made if you take -
if you take the lid off on aggregate contributions. If it — if Justice Scalia’s critique of the
situation proves correct and it is deeply disabling to
candidates and parties, Congress can address that by
changing the contribution limits. And - JUSTICE KAGAN: 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.
(Laughter.) GENERAL VERRILLI: And far be it from me to
suggest that you don’t, Your Honor. JUSTICE BREYER: Well, if it’s interrelated.
But the — the record, as far as I recall it from
several years ago, talked about at length, I don’t like
to use the word “corrupting”; I like to use integration — “integrity of the process,”
that notion of getting people to think that their First
Amendment speech makes a difference, etcetera.
Let’s say “corruption.” Mostly when it got to this part, the aggregate, it was about
circumvention. And I think you are quite right to say, but
there is a huge corruption aspect to this.
But we don’t have a lot of information in the record about that, do we? If I just — did
I just miss it? Did I miss something?
GENERAL VERRILLI: Well, I — well, I think with respect to McConnell, this is -
JUSTICE BREYER: Yeah. GENERAL VERRILLI: — it is really a very
close parallel. JUSTICE BREYER: It is a close parallel when
I think about it, maybe — or you think about it, but if
you’re really talking — they don’t think about it that
way. And so that’s why I’ve been pushing this idea, you
see, of let’s go into this, okay? If they want us to go
into it, go into it. GENERAL VERRILLI: May I answer that?
CHIEF JUSTICE ROBERTS: Sure. GENERAL VERRILLI: I understand that, Your
Honor. I would say that I think the record — you know,
after all, these aggregate limits were enacted in BCRA,
the same statute that — to which that legislative record pertains, and that really does go to
the same problem.
And, therefore, I think it bears upon it, and it’s — it’s ample evidence that would
justify upholding these aggregate limits, and I would
strongly urge the Court to do so.
Thank you. CHIEF JUSTICE ROBERTS: Thank you, General.
Ms. Murphy, you have three minutes remaining.
REBUTTAL ARGUMENT OF ERIN E. MURPHY ON BEHALF OF THE APPELLANTS
MS. MURPHY: Thank you, Mr. Chief Justice. Just a few quick points.
First, we haven’t heard of the Solicitor General talk that much about circumvention
today, and I think that’s because the circumvention argument
just doesn’t really work.
It’s already addressed by all of the multiple prophylactic measures that BCRA contains.
And to the extent those aren’t sufficient, there
are much narrower, tailored ways to get at this, as
the questions from Justice Alito and the Chief Justice pointed
out. What we’re really hearing today is a
corruption argument. But as the questioning revealed,
once you accept the corruption theory that the
Government is putting forward here, there really isn’t a
way to continue to draw a line between independent expenditures and the $3 point million check
to all of these different individuals that is in small
based limited amounts because there’s certainly
going to be just as much gratitude to the individual who
spends $3.6 million directly supporting one candidate
through ads on that candidate’s behalf.
So what we really have is a system that’s forcing money out of the most transparent
way possible to make contributions which is directly to
the candidates and the parties and the PACs.
If there’s no further questions, thank you. CHIEF JUSTICE ROBERTS: Thank you, counsel.
The case is submitted. Alderson Reporting Company