Supreme Court 2014 Preview: McCutcheon v. FEC

Written By: Joey Hinton

Shaun McCutcheon

Shaun McCutcheon

When Congress passed the Federal Election Campaign Act in 1971, candidates for federal office were henceforth required to report expenses and contributions. A few years later, the infamous Watergate scandal unfolded, and rumors of Nixon’s misuse of campaign contributions for private endeavors surfaced. Congress decided to modify campaign finance laws by establishing limits on individual and corporate donations. They set up the Federal Election Commission (FEC) to enforce these limits and ensure candidates toed the line. Litigation over limits on political donations and campaign funding has ensued ever since.

McCutcheon vs. Federal Election Commission is the latest in a string of campaign finance cases to reach the Supreme Court. The Court heard oral arguments on October 8, 2013, and will likely announce its decision this May or June. Three years ago, Citizens United, a conservative non-profit advocacy group, won its case against the FEC in regards to campaign finance. Its argument, which was upheld, held that the First Amendment prohibits the federal government from restricting independent political expenditures by corporations, labor unions or associations. It is worth noting that before the Court’s decision in Citizens United v. Federal Electoral Commission (2010), 26 states allowed unions and corporations to spend unlimited amounts on state campaigns, while the other 24 had various degrees of restrictions in place. The Court’s decision in Citizens United had an enormous impact, enabling a new influx of corporate money to flow into federal elections. McCutcheon v. FEC has the same potential.

Shaun McCutcheon is a wealthy businessman from Alabama who likes to support Republican candidates and committees. In the 2012 election cycle, McCutcheon gave $113,338 to candidates, traditional PACs and party committees. He also gave over $300,000 to Super PACs. Thanks to the Court’s 2010 ruling in Citizens United, individual donors are now allowed to give unlimited amounts to Super PACs. However, there are still restrictions and limits on the amount an individual donor can give to candidates, political parties and traditional PACs. The limits that McCutcheon hopes to invalidate are the aggregate limits, or limits for individual donors, that apply over the two year election period. Currently there are four aggregate limits, which include $48,600 to candidates, $48,600 to non-national party committees, $74,600 to political parties and PACs and no more than a total of $123,200 in donations to the four political entities

McCutcheon argues that these aggregate limits infringe upon his First Amendment rights of free speech and association. McCutcheon has been quoted as saying “We should be able to support as many candidates as we want. There’s no reason to limit the number of candidates or committees.” Conservatives often critique the limits as being too arbitrary, having no clear basis for how they set the amount of money that can be spent and the number of candidates it can be spent on. Those in favor of invalidating the limits also critiqued the government’s use of the “distorting effect” argument, which serves as the rationale for many of the limits. The “distorting effect” argument relies on the assertion that large political expenditures alter the public’s perception of political issues. In Citizens United, the Court ruled that the government could not justify limits simply because large expenditures of money could distort an audience’s opinion. Instead, the Court ruled that controls on spending had to be justified by the danger of “quid pro quo” transactions.

Supporters of the laws that are currently in place believe that in the absence of the aggregate limits, joint fundraising committees will essentially be able to house many political committees under one roof, including those of various political candidates, political parties and other citizen groups. These joint committees would be able to merge hundreds of smaller committees and combine their funds. Advocates of campaign finance restrictions argue that allowing joint committees would effectively undermine and circumvent the separate base limits on contributions to candidates, non-national party committees and political parties that are in place.

Another argument in favor of the aggregate limits is based on the idea that the removal of the limits will lead to greater influence for a small, wealthy elite. Harvard Law School professor Lawrence Lessig is perhaps the biggest proponent for campaign finance limits, and is especially fond of this argument. He filed an amicus brief in the case of McCutcheon v. the FEC, urging the Court to look at the Framers’ understanding of corruption. Lessig presents groundbreaking research that reviews almost every founding-era discussion on corruption in the Framers’ debates over the constitution. Lessig’s research shows that the Framers feared improper dependence on outside forces, whether they were overseas or factions located closer to home. Lessig argues that the Framers aimed to prevent many types of improper dependence, and not just the “quid quo pro” corruption that was cited in Citizens United.

The outcome of this case appears uncertain. While the liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, are known to support campaign contribution limits, their conservative counterparts Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts would most likely be in favor of seeing the limits thrown out. The deciding vote may then fall to justice Anthony Kennedy, who is often seen as the swing vote in many Supreme Court cases. Kennedy did write the Citizens United majority opinion, which could indicate that he will vote to do away with the aggregate limits. However, it is possible that the intense backlash in the wake of Citizens United could cause Kennedy to reconsider his earlier positions on campaign finance. Regardless, his vote will likely decide the case.

If the aggregate limits are struck down, it is likely we will see a surge of donations to candidates and committees across the political sphere in the same way that Citizens United opened the floodgates for unrestricted Super-PAC spending. McCutcheon v. FEC has the potential to forever change the dynamics of the U.S. election system – for better or for worse.



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