October 10, 2013
Earlier this week, the Supreme Court heard oral arguments in McCutcheon v. Federal Election Commission, which is being widely billed as the sequel to 2010’s Citizens United v. Federal Election Commission.
As is widely known, Citizens United struck down the federal prohibition against all independent expenditures by corporations and unions – a decision that remains unpopular today.
Unlike Citizens United, which dealt with limits on independent spending in elections (that is, funds not directly given to political candidates or their campaigns) McCutcheon addresses questions on the constitutionality of limits on contributions to political candidates and political parties. Specifically, the Court will be considering whether the 2002’s Bipartisan Campaign Reform Act’s aggregate limits on 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 violate the First Amendment.
The challenge was started by Shaun McCutcheon, a conservative Alabama businessman who (in his own words) “opposes numerous ‘ill-conceived and overreaching laws.’” To this end, he “wishes to both express his support for and facilitate the election of federal officeholders who share his beliefs and will seek to advance them legislatively.”
Unfortunately for McCutcheon, the BCRA has limits on how much an individual can spend in a given election cycle, and he reached those limits in June 2012, when he filed the lawsuit.
How much are these limits?
The FEC is kind enough to publish a table showing these limits (which may change after the Supreme Court rules on this case). Here are just the individual limits:
- $2,600 to each candidate or candidate committee per election, with an aggregate limit of $48,600 to all candidates per election.
- $32,400 to a national party committee per calendar year.
- $10,000 to a state, district, and local party committee per calendar year.
- An aggregate limit of $74,600 to all PACs and parties per election.
The Republican National Committee (RNC) joined McCutcheon in his lawsuit, stating that it “wishes to receive the contributions McCutcheon would have made, and would make in the future” without those BCRA campaign limits getting in the way.
As mentioned earlier, the Supreme Court heard oral arguments in this case earlier this week. In response to McCutcheon and the RNC’s arguments, the government contended that these limits are necessary to prevent serious government corruption, or a prevalent government perception thereof. Solicitor General Verrilli’s actual statement about this potential “corruption” was that, without these limits, the entire election would hinge on the donations of less than 500 people. Since all candidates would be scrambling to ingratiate themselves to these individuals – and would continue to curry favor with these individuals when they assumed political office – the risk of corruption under this hypothetical would be significant.
How do the justices lean on the issue? There doesn’t appear to be a clear majority either way.
In support of striking down the limits are Justices Scalia, Kennedy, and Thomas. Scalia in particular stated that any concerns of political quid pro quo are overstated since a political action committee (PAC) can spend unlimited amounts of money in support of a candidate, and candidates don’t feel any significant sense of gratitude toward these PACs.
Justice Scalia’s comments here are notable for a couple of reasons. First, this unlimited spending that Scalia is referring to is possible, of course, because of Citizens United, in which Scalia was part of the majority opinion.
Second, Scalia speaks of this “lack of gratitude” that candidates (and politicians) supposedly have as though it were a foregone conclusion, when at least four of his colleagues on the bench would strongly disagree with him.
These four, Justices Ginsburg, Breyer, Sotomayor, and Kagan, expressed a clear preference that the limits be allowed to remain in place –seeming to adhere to the view that doing otherwise would irreparably corrupt the political process.
Roberts’s biggest concern seemed to be allowing smaller donors more flexibility in their political contributions without allowing billionaires massively disproportionate influence. One way to achieve this end would be to strike down only the aggregate limits for candidates, but it’s not entirely clear how the Chief Justice will come down on this case.
Currently, the FantasySCOTUS “Question Presented” for this case only asks about the limits on contributions to “non-candidate committees” – which predominantly refer to political parties. Given Roberts’s comments during oral arguments, it seems likely that he will vote to uphold at least these limits. But he may not do so on the other challenged provision (regarding donations to candidates).
With the question as is, however, my prediction is 6-3 affirming the lower court (which upheld the limits). Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan will be in the majority, and Justices Scalia, Kennedy, and Thomas will be dissenting.
Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest.
Lower Court’s Decision
AFFIRM 6-3 (Majority: Roberts, Ginsburg, Breyer, Alito, Sotomayor, Kagan; Dissent: Scalia, Kennedy, Thomas).
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