In 2010, the 5-4 ruling in Citizens United freed corporations and labor unions to spend as much as they wish on campaign advocacy, as long as it is independent of candidates and their campaigns. That decision did not affect contribution limits to individual candidates, political parties and political action committees.
Now, Republican activist Shaun McCutcheon of Hoover, Ala., the national Republican party and Senate GOP leader Mitch McConnell of Kentucky want the court to overturn the overall limits on what contributors may give in a two-year federal election cycle. The total is $123,200, including a separate $48,600 cap on contributions to candidates, for 2013 and 2014.
The partisan-tinged campaign finance case comes to the court amid a tense stalemate over the federal budget that has shuttered parts of the government, but so far has not affected the Supreme Court.
Chief Justice John Roberts formally opened the new term Monday without any reference to the shutdown. The court has announced it will operate normally at least through the end of this week.
Among the appeals denied Monday was Virginia Attorney General Ken Cuccinelli's request to review a federal appeals court ruling that threw out the state's ban on oral and anal sex. Ten years ago, the Supreme Court struck down the Texas anti-sodomy law in a case involving two adults. Virginia argued that the Texas ruling did not apply to sex acts between adults and minors. The case stemmed from the case of a man convicted of violating the Virginia sodomy statute for demanding oral sex from a 17-year-old girl. That came after the Texas decision. The justices did not comment in rejecting the argument.
The court also declined to hear, at least for now, Argentina's appeal of a ruling that orders it to pay hedge funds that bought up some of the country's unpaid debt from its default in 2001. The country is continuing to pursue its case in federal court in New York and could file another appeal with the Supreme Court.
The campaign finance case being argued Tuesday would not affect the current $2,600 limit on individual contributions to any candidate for Congress, in any given election.
McCutcheon, owner of the Coalmont Electrical Development Corp. in McCalla, Ala., said he will spend a few hundred thousand dollars in the current election cycle, including large donations to so-called super PACs that are not affiliated with candidates.
McCutcheon gave the symbolically significant $1,776 to 15 candidates for Congress and wanted to give the same amount to 12 others. But doing so would have put him in violation of the cap.
"It's a very important case about your right to spend your money how you choose," he said.
Solicitor General Donald Verrilli Jr. told the court that donors "could potentially funnel massive amounts of money to a favored candidate," in the absence of the overall limit. One donor, giving the maximum allowed to every congressional candidate, political party and political action committee, he said, would exceed $3 million in contributions in a single election cycle.
The Republican challengers are asking the court to take an even more aggressive approach than merely overturning these particular limits. McConnell is leading the charge to urge the justices to ditch their practice over nearly 40 years of evaluating limits on contributions less skeptically than restrictions on spending.
The differing levels of scrutiny have allowed the court to uphold most contribution limits, because of the potential for corruption in large direct donations to candidates. At the same time, the court has found that independent spending does not pose the same risk of corruption and has applied a higher level of scrutiny to laws that seek to limit spending.
If the court were to drop the distinction between contributions and expenditures, even the per election contribution limit of $2,600 to any candidate for Congress would be threatened, said Fred Wertheimer, a longtime supporter of stringent campaign finance laws.
"This is not about some abstract concept of aggregate limits. It's about re-establishing a system where huge contributions can be given directly to benefit candidates and parties and it will create opportunities for the corruption of governmental decisions," said Wertheimer, president of the nonpartisan Democracy 21 group.
In recent years, opponents of campaign finance laws have won a string of victories, typically by a 5-to-4 vote with the court's conservative justices in the majority. Their winning streak dates to the replacement of Justice Sandra Day O'Connor, who often voted to uphold campaign limits, by Justice Samuel Alito, who is far more skeptical of the restrictions.
O'Connor was in the courtroom Monday for the start of the new term.