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GOP seeks more donor freedom

The Republican National Committee on Tuesday mounted a fervent new effort to get the Supreme Court to give those who contribute money to political campaigns as much freedom as those who spend money independently to promote candidates and causes.  In a sixty-page brief in a case that the Court is to decide at its next Term, the GOP’s national organization argued that the time has come to give donors wider First Amendment freedom to make contributions to parties and candidates.

For the past thirty-seven years, the Court has held fast to the idea that limits on political spending put a heavier burden on political expression than limits on contributions do, and so the government has more power to regulate contributions than spending.   The differing approach originated in the Court’s 1976 decision in Buckley v. Valeo, and it has withstood repeated attacks by advocates for donors and even by strong criticism by some Justices themselves — including current Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.

The RNC is seeking to use the new case of McCutcheon v. Federal Election Commission (docket 12-536) as a test of that distinction, arguing that changes in the law and more recent Supreme Court decisions have undermined the rationale for tougher restraints on donations.

The individual donor also involved in the case, Alabaman Shaun McCutcheon, filed a separate brief; it can be read here.  That brief, however, confines to a footnote its challenge to “Buckley‘s unsustainable dichotomy between contributions and expenditures.” Even so, the footnote did argue that the Court should not hesitate to overrule that distinction, since it is based on the Constitution and thus cannot be overturned by new legislation.

Both the RNC and McCutcheon urged the Court to use the most rigorous constitutional test — “strict scrutiny” — to judge limitations on campaign contributions.  The Court has used various phrases in judging such restrictions, but has never embraced the toughest test.   The RNC devoted considerably greater attention to that issue than did McCutcheon.

This case does not involve any challenge to what are called the “base limits” on campaign contributions.  Those are the annual limits on what a donor can give to a candidate directly, to a campaign committee, a party, or a party committee.  The challenges, rather, are to what are called “aggregate limits” — the total amount that a donor can give to all political recipients during a two-year election cycle. Both the RNC and McCutcheon contended that these overall limits impose a heavier burden on campaign expression than do the base limits, and cannot be justified by any argument that giving to more recipients risks corruption in campaign financing.

Although the Buckley decision did uphold an “aggregate limit” — an overall ceiling during an election cycle — of $25,000, both the RNC and McCutcheon argued that the Court did so in order to prevent donors from evading the base limits then in effect on contributions.   But Congress has changed the law, and blocked off avenues for such evasions, the two briefs argued.

The RNC challenge targets the two-year limit now in effect of $74,600 on donations that it can receive as a political committee that is not an immediate part of a candidate’s campaign organization.   The McCutcheon challenge is aimed at the same $74,600 two-year ceiling on contributions to non-candidate committees, and also at the $48,600 two-year ceiling on donations to candidate organizations.  While he is willing to abide by the base limits on his contributions to any entity, he wants to give more in the aggregate than the two-year ceilings allow.

Those are the ceilings that will be in effect during the 2013-2014 cycle.  During the last cycle, McCutcheon wanted to contribute $26,200 more than the limit then in effect for contributions to party or other committees not tied to an individual candidate, and $8,200 more than the current limit allowed to candidate organizations.  He has said he also wants to exceed the limits in the future.

The McCutcheon brief argued that the two-year restrictions are invalid because they simply function as a restraint on how many candidates or political entities a donor can support.  “By preventing a person from making ‘too many’ otherwise legal and innocuous contributions,” his brief said, “aggregate limits effectively penalize those who wish to exercise their First Amendment rights robustly.”

He also contended that the overall caps tend to force political organizations into competition, to beat out each other in getting the limited overall donations than a single contributor can make.

The RNC’s challenge to the aggregate limit on the money it can receive from donors during a two-year cycle argued that such an overall cap is far more restrictive of campaign expression rights than are the base limits.   Even if base limits are to be judged by a legal standard less demanding that strict scrutiny, there is no basis for using any test other than strict scrutiny for aggregate limits, its brief contended.  “The limits differ in kind,” it argued.

The Court has not yet set a date for hearing the McCutcheon case.   The Federal Election Commission will have a chance to file its own brief in answer to those filed this week by the challengers.  The FEC brief is now due by July 18.

Recommended Citation: Lyle Denniston, GOP seeks more donor freedom, SCOTUSblog (May. 8, 2013, 12:59 PM),