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SCOTUS decision could erase some campaign donation limits

CHARLESTON, W.Va. -- Four West Virginians who appear to have exceeded overall limits on political donations may not have to worry about those limits the next time around.

The U.S. Supreme Court recently heard arguments in a case that could invalidate the aggregate limits on contributions to federal candidates.

Currently, a person cannot give more than a total of $48,600 to federal candidates and $74,600 to parties and political action committees in any two-year election cycle. Those limits apply no matter how many candidates or committees a person gives to.

The case, McCutcheon v. Federal Election Commission, has been billed as a kind of sequel to the Citizens United, the 2010 case that struck down limits on independent political spending by corporations and unions.

Shaun McCutcheon, the CEO of an Alabama company that makes electrical systems for mines, sued the FEC. McCutcheon said that by limiting the total amount he could spend on campaigns the law was unduly infringing on his First Amendment freedom of speech.

McCutcheon did not challenge the limit on contributions to individual candidates, which is currently $2,600 per election, just the limit on total spending.

"By prohibiting contributions that are within the modest base limits Congress has already imposed," Erin Murphy, McCutcheon's lawyer, told the court on Oct. 8, "these limits simply seek to prevent individuals from engaging in too much First Amendment activity."

Arguing on behalf of the FEC, Solicitor General Donald Verrilli, said that the aggregate limits are necessary to combat corruption. Verrilli argued that the individual limits are toothless without the aggregate limits, because one donor could give to many candidates of the same party who could then funnel the money all to one candidate, creating the possibility of quid pro quo corruption.

"Candidates are not hermetically sealed off from each other and parties are not hermetically sealed off from candidates, "Verrilli said. "They're all on the same team."

Without the aggregate limits, Verrilli foresaw a hypothetical situation where a person could donate $3.6 million to one party by giving the maximum amount to every congressional candidate and every party committee, creating the incentive for corruption and effectively drowning out the voices of smaller donors.

"If you think that a party's got to get $1.5 billion together to run a congressional campaign," Verrilli said, "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."

The McCutcheon case could result in major changes to how elections are funded, while tangibly affecting only a handful of West Virginians. It's impossible to know how many people would spend more on campaigns if there were no aggregate limits, but in 2012 only five West Virginians brushed up against the limits, according to an analysis of federal data by the Center for Responsive Politics. That includes the four men who appear to have given in excess of the limits.

Nationwide, 591 people, about 0.000002 percent of the voting-age population, maxed out their donations to federal candidates in 2012, according to the Center for Responsive Politics.

Justice Antonin Scalia argued that placing any limit on the speech of those people was impermissible.

"I assume that a law that only, only prohibits the speech of 2 percent of the country is OK?" Scalia asked facetiously.

The Republican National Committee is a co-plaintiff against the FEC, arguing that the limits unconstitutionally constrain it from accepting money from people like McCutcheon.

Conrad Lucas, the chair of the West Virginia Republican Party, said he thoroughly supports the RNC's position.

"The court has been very clear that contributions are protected speech and this is simply a reasonable way for individuals to support all the candidates they want to," Lucas said.

He said that a decision striking down the aggregate limits could increase transparency because it would take unreported money that now goes to super PACs and outside groups and send it to party committees and candidates, where it is reported.

Larry Puccio, the chair of the West Virginia Democratic Party, did not explicitly endorse one side in the McCutcheon case, but his basic position was clear.

"From past experience seeing an individual like Don Blankenship literally spending millions and millions of dollars," Puccio said, "we're extremely cautious and fearful that you don't want anybody to spend so much money that they control government."

Secretary of State Natalie Tennant, who is in charge of administering elections in West Virginia, said that getting rid of the aggregate limits could increase the influence of corporations and special interests in West Virginia elections.

"It's my job to protect West Virginians' voices at the polls," Tennant, a Democrat who is also running for U.S. Senate, said in an email statement. "I strongly oppose the corrosive effect of unregulated money in politics. I oppose any attempt to give more power to Wall Street bankers over the voices of regular West Virginia citizens.

Rep. Shelley Moore Capito, who will likely face Tennant in the race to replace Sen. Jay Rockefeller, declined to comment on the McCutcheon case. Reach David Gutman at david.gutman@wvgazette.com or 304-348-5119.


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