McCutcheon v. FEC Tomorrow
posted by Zephyr Teachout
McCutcheon argument tomorrow. This case could potentially lead to overturning Buckley v. Valeo, by instituting strict scrutiny for campaign contributions. With strict scrutiny, few campaign contribution limits would survive. Here’s an overview for those of you just starting to pay attention.
The issue in this case is the constitutionality of aggregate spending limits. Does the First Amendment mandate that individuals like Shaun McCutcheon be able to spend more than $123,200 in direct donations to candidates and parties, assuming he is willing to abide by the individual, base limits. Federal law limits the size of individual donations to candidates, national party committees, state and local party committees, and PACs. For instance, an individual can give no more than $2600 to a candidate in any given election. These are base limits. It also limits the total amount an individual can contribute in a two year cycle. The aggregate limits are currently set at $48,600 for candidates and $74,600 for to non-candidate groups. These are aggregate limits.
This is not about corporate speech, or about entirely independent speech. Federal law does not limit how much an individual can independently spend on a candidate, and since Citizens United and SpeechNOW, individuals can give unlimited amounts to so-called “SuperPACS” which do not donate to candidates or parties but spend independently.
Within the framework set up by Buckley v. Valeo, expenditure limits are strictly scrutinized because they heavily burden First Amendment rights, and contribution limits, while they burden speech rights, constitute a lesser burden and are less strictly scrutinized. Buckley found contribution limits constitutional because they served the governmental interest in fighting corruption and the appearance of corruption. A majority of this Supreme Court, as currently constituted, has stated that only quid pro quo corruption and the appearance of corruption can justify restrictions on political speech. Other governmental interests (such as restricting disproportionate political power or political equality) have been explicitly rejected as justifications. The scope of what constitutes corruption, however, is still not entirely clear–it appears to be implicit or explicit exchange. (My own view is that the key Justices do not actually know how to make sense of corruption as a concept, being so deeply embedded in an undertheorized public choice political theory–but more on that later.)
There are three basic arguments that aggregate limits are unconstitutional:
(1) Aggregate limits do not serve the governmental interest in combating quid pro quo corruption or the appearance thereof, and therefore do not survive even the lesser scrutiny given contribution limits
(2) Aggregate limits, unlike base limits, are better understood as expenditure limits than contribution limits, and therefore should be subject to strict scrutiny
(3) A Constitutional distinction between the First Amendment interests in contributions and expenditures is analytically untenable, and therefore contribution limits should be subject to the same strict scrutiny applied to expenditure limits
The key Justices to watch are Alito, Roberts, and Kennedy. While the initial briefing was on narrower grounds, the Court’s invitation to Mitch McConnell to participate in oral argument signals a potentially sweeping decision. McConnell submitted a brief arguing that that contributions limits should be subject to strict scrutiny. I happen to believe this is an area where oral argument can make a difference. I tend to think the more this is discussed abstractly, the better it goes for McCutcheon, and the more grounded in political realities, the better for the FEC.