Increasingly, the money that funds election races for Congress and the presidency comes from a small sliver of the very rich, what the Sunlight Foundation called the elite class that serves as gatekeepers of public office in the United States. The nonpartisan group has tracked how a growing share of election money comes from the top 1 percent of the wealthiest Americans.
In the first major case of its new term, the court could give those donors even more clout with lawmakers and their parties. The issue is whether federal limits, not on contributions to individual races but on how much a donor can give to all candidates for Congress or party committees in a particular election cycle, violate the right of free speech.
Three years ago, the current court under Chief Justice John Roberts said in the Citizens United case that independent spending on election races was protected free speech and struck down long-standing bans on such spending by corporations and unions.
But until now, the courts conservatives have not joined together to strike down the Watergate-era limits on how much donors can give directly to candidates or party committees.
That has left the law in an odd posture. Wealthy people who want to influence campaign races can give millions of dollars to super PACs and other groups that pay for independent election ads, but they are barred by law from giving more than $48,600 in total to all members of Congress or more than $74,600 to the various party committees.
That may be about to change. On Oct. 8, the Supreme Court will take up an appeal from the Republican National Committee, Sen. Mitch McConnell, R-Ky., and Alabama businessman Shaun McCutcheon, who say contributions should be treated as core political speech.
If they win, a wealthy Republican or Democrat could give as much as $3.6 million in total by giving the maximum amount to all of its party committees and candidates. This money could be funneled by party leaders into a close race or races, tipping the balance of power in Congress.
Defenders of the election laws have been sounding the alarm.
It would be terrible for our democracy if one politician could directly solicit $3.6 million from a single donor, said Lawrence Norden, an election law expert with the Brennan Center, a liberal legal advocacy group in New York. That is 70 times the median income for an American family. It would mean a tiny, tiny group of donors would wield unprecedented power and influence.
But the total limit on contributions stands on shaky ground. In recent opinions, Roberts has said the government may not try to level the playing field between candidates or prevent well-funded candidates from using their money advantage to dominate the airwaves.
The only justification for limiting contributions, the court has said, is to prevent corruption or the appearance of corruption.