In latest campaign finance ruling, Supreme Court further expands definition of “free speech”

April 4, 2014

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonIn case anyone were wondering whether the Supreme Court is still in full support of its 2010 Citizens United v. Federal Election Commission ruling, a ruling handed down on Wednesday surely answered that question.

That ruling was McCutcheon v. Federal Election Commission, and the Supreme Court (or, at least, the same five justice majority of Citizens United) further chipped away at federal government’s campaign finance regulatory powers.

I gave a synopsis of the case’s background in a post published right after oral arguments last October, but in case you don’t feel like flipping to another page, here’s the short version:

Shaun McCutcheon, a conservative Alabama businessman, challenged the constitutionality of certain provisions of the 2002’s Bipartisan Campaign Reform Act (or “BCRA,” which was already left barely standing after Citizens United) that limited the total amount that an individual may contribute to all federal candidates, political party committees, and other political committees during a two-year federal election cycle.  For the current 2013-2014 election cycle, that total is $123,200.

Besides these “aggregate limits,” BCRA imposes “base limits” that restrict the amount of money that a donor may contribute to any single recipient.  Unlike the aggregate limits, McCutcheon has no quarrel with the base limits (which are currently published by the FEC here).

The case made its way to the Supreme Court, who ruled on it yesterday along ideological lines.

Chief Justice Roberts wrote for the majority, which consisted of Justices Scalia, Kennedy, and Alito.  Justice Thomas wrote a concurrence that agreed with the majority’s end result.

What was this result?  That BCRA’s aggregate limits violate the First Amendment’s guarantee of freedom of speech, holding that “[c]ontributing money to a candidate is an exercise of an individual’s right to participate in the electoral process through both political expression and political association.”

The majority went on, stating that “[t]he government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”

Despite sounding like passages straight out of Citizens United, McCutcheon’s reasoning actually goes further than the central holding of the four year old ruling.

Here’s how: where Citizens United held that the First Amendment protects expenditures for political speech, McCutcheon now holds that the First Amendment protects donations given to political causes.

The difference is significant.  The kinds of expenditures specifically protected by Citizens United were those that were used for political speech (whether it be political ads, literature, campaigning, etc).  In McCutcheon, the Court is now ruling that the First Amendment protects donations to political causes as speech (and association).

In short, writing a check to someone who is campaigning for political office, regardless of what that money is used for, is now protected by the First Amendment.

The majority left the base limits intact, claiming that these will do an adequate job in stemming political corruption that could arise from the deregulation of campaign finance enshrined in McCutcheon.  But the Chief Justice also called on Congress, just as he did in Shelby County v. Holder, to create a solution to the issue before the Court.

Of course, it’s inconceivable that the sitting Chief Justice of the United States Supreme Court would be unaware of the fanatical political deadlock currently infecting Congress.  In other words, there’s no way that Roberts could actually believe that Congress would take meaningful action because of his words in the majority opinion.

So why does he make such calls to action?  Likely because Roberts wants to appear as though he is espousing some kind of middle road in these issues by appearing to have an open ear to the concerns of the dissenters.

If McCutcheon is any indicator, though, rather than establishing a middle ground on issues, Roberts’s rulings take the issue a step further into the ideological direction that Roberts favors.

Unless there is an ideological shakeup at the Court beforehand, the next ruling on campaign finance – or any other major issue, for that matter – will be taken yet another step further than that taken by the Court in McCutcheon.