The Justices yesterday pondered and puzzled over various hypotheticals about how large donations can flood into the political system. All advocates were highly able and performed well, but the discussion never came to a clear agreement about what the law would allow, or when its proper enforcement would require the Federal Election Commission to challenge underhanded activity. There was uncertainty about contribution limits and the various uses of the terms “transfers” and “contributions”; disagreement about how far the earmarking rules reached; distinctions blurred between “hard” and “soft” money; and differences over which schemes for evading the limits could be considered “realistic” predictions of political behavior. Justice Breyer offered one hypothetical and a view of the legal implications, then conceded he or his law clerk might have it wrong and would have to review the rules again.

Justice Breyer also had views of how easily circumvention could be accomplished and how open to public view it was. It was “pretty easy,” he said, “to have not one person control … 4,000 PACs,” 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.” Transcript of Oral Argument at 8, McCutcheon v. FEC, No. 12-536 (Oct. 8, 2013). Justice Sotomayor seemed to agree that “I can go into the news, as Justice Breyer suggested” and find evidence of the limit-evading activity. It is also “nearly common sense, hard to dispute,” she said. And challenging Mr. McCutcheon’s counsel, she said “you’re saying it can’t happen, but I don’t see charges of coordination going on that much.” Id. at 15. The counsel, Erin Murphy, was stumped: “I guess I’m not sure what you’re talking about happening.” Id. Justice Breyer later conceded that little progress was being made: “we can’t do this, figuring out all these factual things in an hour, frankly.” Id. at 41.

Justice Scalia might have spoken for the audience when he said that the law was “so intricate that I can’t figure it out.” Id. at 17. One imagines that Justice Kennedy would have been of the same mind: he has said so, in Citizens United. 558 U.S. 310 (2010).

The Solicitor General argued the limit’s function in preventing circumvention—but he also took the broader position that any large contribution tendered to a joint fundraising committee was corruptive on delivery. The corruption in that situation was “inherent.” Transcript of Oral Argument at 29, 50. This claim prompted Justice Scalia to question whether there was much point in worrying about this gateway to influence when independent expenditures were available without limit and with less legal risk. Id. at 30-31.

Independent expenditures hovered over the argument. No Justices disputed that independent spending could inspire indebtedness in a candidate or party. For Scalia, this suggested that because aggregate contribution limits could not serve the purpose of keeping “big money” out of politics, they could not be defended as an anti-circumvention measure. Justice Kagan suggested that this would be good reason to revisit Citizens United and close off the path that “independence” opened to big money.

No agreement, then, on the law, nor about certain facts of contemporary campaign finance practice. Justice Breyer proposed that a remand to the district for the development of a factual record might be helpful. He did not seem to have four takers, and the Government lent no encouragement to this alternative, but time will tell.

In one way McConnell was very much present in the courtroom (in two ways, really, since Senator McConnell was also present). In the law’s unsettled and unstable state, after Citizens United, the parties are the most accessible object of regulation. The candidates who stand behind, or represent them on the ballot, or control them, are the ones whose corruption is at issue, and in the McConnell view of the world, the parties are the channels through which the potential for corruption is realized most directly. The hypotheticals bandied about in the argument all assumed that party committees might well conspire to circumvent limits at the direction of the candidates whose gratitude would go to the donors and not to the party. Justice Alito was one who doubted that state parties would accept funds just to make contributions to candidates outside their states. But for the most part, the picture drawn of parties was one of conduits or shells manipulated to move money around the limits.

This was the argument carried against them in McConnell when the concern was “soft money,” or money largely raised on the claim that it was not being spent on federal elections. Now, in this “hard money” case, there is no doubt that the funds are being solicited and spent for a federal election-related purpose, but the concern is that through a bit of mischief, hard money can become “big money” that as just as corrupting in effect as “soft money.” Meanwhile, after Citizens United and other legal developments, what was once “soft money” circulating outside the party system, among what are sometimes called “outside groups” has become “hard money,” that it is, it is raised and spent within the lawful limits—which by operation of the constitutional law, are no limits at all. Congress cannot reach this activity and so it is urged to regulate what it can. Within this diminished field of regulatory activity, this means in large part the regulation of parties and their candidates.

Justice Ginsburg asked the Solicitor General whether it was true that a limit such as the aggregate limit “drives contributions towards the PACs and away from the parties,” that “without these limits, money would flow to the candidate, to the party organization.” And the Solicitor General answered that “we take the constitutional framework of this Court’s decisions as a given.” Id. at 42-43.