Supreme Court considers political funding limit; Case from Missouri tests constitutionality of ruling in '76 on campaign donors


WASHINGTON -- The Supreme Court signaled yesterday that it regards money in politics the same way that many Americans do: troubled that big donors might have too much influence but unsure what to do about it.

The difference is that the justices must make up their minds. They have before them the most significant test case in 23 years on the constitutionality of campaign finance restrictions, and politicians and contributors everywhere are awaiting an answer.

Yesterday, with all nine justices joining energetically in a lively hearing, they debated the power of states -- and, by implication, Congress -- to continue to limit how much money people can give to candidates.

At the end, the justices seemed deeply divided, apparently unwilling to abandon a 23-year-old ruling that laid down the constitutional rules on campaign finance, but far from agreement on how -- if at all -- to tinker with those rules.

In the 1976 decision, the court said that nearly all curbs on campaign spending would unconstitutionally infringe on free speech but that some limits on contributions are permissible if they can pass a "rigorous" constitutional test. The court spent all its time yesterday discussing restrictions on contributions.

At issue was a $1,075-a-person ceiling on donations to candidates for statewide Missouri offices. Noting that the justices had ruled in 1976 that giving money for campaigns is a form of speech protected by the First Amendment, a federal appeals court struck down that ceiling. But the state of Missouri has asked the justices to revive the $1,075 limit, saying the appeals court ruling was an attack on the court's 1976 decision.

From questions and comments by the justices yesterday it appeared that five of them are likely to insist on strong evidence that money has had an improper influence on candidates before they would accept ceilings on donations, as the court did in 1976.

Justice Anthony M. Kennedy told Missouri's attorney general, Jeremiah W. Nixon: "If a contribution is speech, it is hard to say that that speech is a subversion of the political process."

Justice Sandra Day O'Connor, who is likely -- as is Kennedy -- to hold a decisive swing vote if the court is divided on the issue, said the court made clear in 1976 that curbs on campaign contributions have "to pass rigorous First Amendment scrutiny."

She said it is "important to know exactly what" Missouri's justification was for limiting political donations.

It seemed, though, that four other justices are willing to accept that it is "inherent" in politics, without any evidence needed to prove it, that big donors obtain big rewards from candidates they help elect.

Justice David H. Souter remarked that "most people assume -- I certainly do -- that someone making an extraordinarily large contribution is going to get something extraordinary in return."

He added: "Speaking as one judge, I think it is highly plausible to think that something very good is going to be purchased by a very large contribution."

Justice Ruth Bader Ginsburg noted that Congress has imposed a $1,000 campaign contribution limit on individuals, a restriction the court upheld in its 1976 decision. She said that if Congress thought that the limit was necessary to overcome the public's perception of corruption, states, too, should be free to do so.

"Why should Missouri be required to show us" actual proof of corruption? she wondered.

Justice Stephen G. Breyer spoke of a mythical donor, whom he named Ebenezer Scrooge, who wrote a check for $15 million to a politician. "People might think he owns that candidate," he said. "Why can't a state say that, in this state, it is important that democratic interests be furthered by not having candidates owned by rich people?"

Swiftly retorting, Justice Antonin Scalia, a sharp critic of Missouri's donation limit, said: "Even Ebenezer Scrooge has a right to participate as fully as he wishes in the American political process."

That comment was welcomed by a St. Louis lawyer, D. Bruce LaPierre, representing the challengers to the Missouri law. Until that point, LaPierre had been battered by justices who seemed sympathetic to Missouri's effort to control campaign finance.

Several members of Congress sat in the audience. Although the Senate is expected to take up proposed new limits on campaign financing soon, it seems doubtful that the votes are there to enact such measures this year.

In any event, whatever Congress might do would be influenced by the court's decision in the Missouri case. A ruling is expected sometime next year.

Pub Date: 10/06/99

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