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.

It is assumed that if the Court in McCutcheon revises the standard of review for contributions, it will do so to overthrow Buckley and to bring the standards for contributions and expenditures into alignment. Certainly this is a possibility, and it is the outcome being urged by Senator McConnell and dreaded by prominent voices in the reform community.

Of course, the Court has other choices. Depending how it goes about the task, the Court could improve on the Buckley jurisprudence without destroying altogether the contribution/expenditure distinction. The Court’s treatment of contributions and expenditures does not have to be same in order for the approach to contributions to be better—more rigorous in construction and more convincing in application—than it is today.

Rick Hasen has joined others in arguing that, if in McCutcheon the Supreme Court were to strike down the aggregate limit on political contributions, the large individual donor would be able to amass undesirable influence by donating to joint fundraising committees organized by candidates and parties. The money distributed through those committees is governed by limits—$2600 per participating candidate, etc.—but when first given to the joint fundraising committee, the total donated might be massive, in the millions, and the parties and candidates who would divide it up later could be insidiously grateful to the donor.

If the aggregate limit is a means of enforcing the base limits and blocking circumvention, it raises the question: how effective does an anti-circumvention measure have to be to prevail in a test of the provision’s constitutionality? In the case of the aggregate limit, the inquiry leads quickly to a consideration of a new fact of campaign finance—the super PACs.

Norm Ornstein predicts trouble if the Court in McCutcheon strikes down the aggregate contribution limits—the trouble of increased corruption. If You Think Citizens United Was Bad, Wait for This Supreme Court Case, The Atlantic (September 26, 2013). Brad Smith disagrees and argues that experience shows there is nothing to fear. The Next Battle in the Fight for Free Speech, Wall Street Journal (September 29, 2013). Two knowledgeable analysts come to these very different conclusions; the reason, it appears, is that they are not using the same doctrinal yardstick for measuring the potential for corruption.

As the McCutcheon case nears argument, there is more discussion of the consequences if the Court strikes down the individual aggregate contribution limits. The court could certainly take the occasion to alter the basic Buckley framework and tighten the scrutiny applied to contribution limits. But another line of argument holds that the consequences would be sufficiently drastic if the limits fell but the fundamental constitutional law of the land did not change. On this view, the aggregate contribution limit would invite massive spending for the benefit of candidates that would heighten the risk of corruption.