October 3, 2013  ·  Lessig  · Reblogged from  Tumblr

The Grenade in the McCutcheon Briefs:

The great Trevor Potter (aka, Colbert’s superpac lawyer), has a fantastic post about a potential bomb (ok, “grenade”) in the middle of the briefs in the McCutcheon case. 

The question in that case is whether aggregate limits on contributions are constitutional (I.e., do you have a constitutional right to give more than ~$125k to federal candidates every year). But in deciding that question, petitioners have asked the Court to revisit the standard of review that applies to limitations on “contributions.”

Therein lies the bomb: In Buckley (1976), the Court held that while limits on expenditures had to be evaluated under “strict scrutiny,” limits on contributions got “less rigorous” scrutiny. In McCutcheon, the petitioners (and Senator McConnell, who will also be arguing in the case) are asking the Court to apply the same standard to contributions and expenditures.

What that means is that any limitations on contributions will be much much harder to uphold. And in the context of this Court, what “much much harder” means is impossible: Contributions will be unlimited just as expenditures are now unlimited. 

Mark one more for the Lesters

(Original post on Tumblr)