From Citizens United to “Contributions Unlimited”?

October 11, 2013

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonBicker. That’s what politicians in D.C. seem to do. Bicker is also the first word used in the non-final transcript of oral arguments in McCutcheon v. Federal Election Commission on October 8, 2013. And there are more references to Bicker, as if it’s a case name. But, really, the word was invoked as shorthand for the Bipartisan Campaign Reform Act (BCRA), which amended the Federal Election Campaign Act (FECA). The statutes are being challenged on First Amendment grounds.

Not so long ago, in Citizens United v. Federal Election Commission (2010), the Supreme Court held that the BCRA’s restrictions on independent corporate expenditures for electioneering communications violated the First Amendment’s protection of speech. That holding also applies to labor unions.

While Citizens United dealt with expenditures that are not coordinated with a particular candidate, McCutcheon challenges the aggregate limits on contributions made directly to candidates.

If you read the transcript from the oral arguments, 2013 WL 5536482, you’ll notice the Justices and the attorneys throwing out lots of numbers. It gets confusing. Here’s what they’re talking about.

The base limits (before indexing for inflation) allow an individual to contribute $5,000 per election to any given Senate or House candidate or the candidate’s agent or authorized committee ($2,500 for the primary election and $2,500 for the general election); $30,800 per calendar year to each of a party’s national committee, its Senate campaign committee, and its House campaign committee; $10,000 per calendar year to each of a party’s 50 state committees; and $5,000 per calendar year to any given political action committee (PAC).

In the absence of aggregate limits, the base limits would allow contributions to an unlimited number of PACs, and $3.5 million in contributions to candidates and party committees in a single election cycle. That number was mentioned many times during oral arguments.

The biennial aggregate limits (before indexing for inflation) restrict an individual’s contributions to $46,200 to all candidates or their committees, and $70,800 to all other committees, with no more than $46,200 going to state party committees and PACs. These aggregate limits prevent an individual from contributing more than $117,000 per biennium, or contributing the statutory maximum to more than 18 candidates.

One reason often cited for the aggregate limits on contributions is preventing circumvention of the limits on contributions to individual candidates, which are intended to avoid corruption or the appearance of corruption. Whether aggregated contributions can have a corrupting effect may be a factor in the Court’s decision. Also, the Court might revisit its holding in Buckley v. Valeo (1976), which upheld contribution limits. There, expenditure limits were subjected to strict scrutiny and were struck down, while contribution limits were upheld, on review to determine whether they satisfied the lesser demand of being closely drawn to match a sufficiently important interest.