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Symposium: McCutcheon v. Federal Election Commission

Foreword: Buckley v. Valeo revisited

Concentrated wealth is nothing if not creative.  As this Court has observed, the
history of campaign finance reform has been a cycle of legislation followed
by the invention and exploitation of loopholes, followed by more legislation
to cut off the most egregious evasions.
— Then Solicitor General Theodore Olson

Oral arguments in McConnell v. FEC (2003)

This Term the Roberts Court returns to one of its favorite arenas of constitutional jurisprudence – First Amendment free expression law.  Having now rendered thirty opinions in this area, the Court is poised to consider some major questions ranging from campaign finance restrictions to limits on protesting near abortion clinics (see here).

The case, the parties, the lawyers

On Tuesday, October 8, the Court will hear arguments in McCutcheon v. Federal Election Commission.  In his merits brief on behalf of the Republican National Committee (RNC), attorney James Bopp calls on the Court to expand the First Amendment rights of those who contribute money to political campaigns.  This constitutional challenge to aggregate limits on contributions to federal candidates and political committees addresses an issue left untouched in Citizens United v. Federal Elections Commission (2010).

Appellant Shaun McCutcheon, the Chief Executive Officer of Coalmont Electrical Development, is the treasurer of a super PAC called the Conservative Action Fund. Represented by Michael T. Morley, McCutcheon is contesting the Bipartisan Campaign Reform Act’s $74,600 two-year ceiling on contributions to non-candidate committees along with the $48,600 two-year ceiling on donations to candidate organizations.

During the 2011-2012 federal election cycle, McCutcheon contributed to sixteen federal candidates and sought to contribute to twelve others.  But for existing law, Mr. McCutcheon would have given $25,000 to each of three political committees established by the Republican Party.  The RNC wished to receive additional contributions from individuals like McCutcheon.  To do any of this, however, would have contravened existing aggregate contribution limits. “‘I just want to donate to more candidates,’ said McCutcheon, adding rhetorically: ‘Why am I not free to spend money however I want?’”

So far as aggregate contributions are concerned, Messrs. Bopp and Morley invite the Court to revisit the distinction made in Buckley v. Valeo (1976) between limits on contributions made directly to political candidates and political committees (which can be restricted) versus limits on campaign expenditures to support a candidate or cause (which cannot be restricted).

Solicitor General Donald Verrilli, Jr., is representing the Federal Election Commission.  Arguing that the Justices should not revisit or revise Buckley, Verrilli maintains that the appellants have “provided no sound arguments to overrule Buckley’s longstanding distinction between contribution limits and expenditure limits.”  Moreover, he contends that the appellants’ call for strict scrutiny review of aggregate contribution limits cannot be squared with the ruling in Buckley.

The lower court opinion

In the First Amendment community, Judge Janice Rogers Brown, currently on the U.S. Court of Appeals for the District of Columbia, is perhaps best known for her libertarian-like dissent in Nike v. Kasky (2002) while she was still a member of the California Supreme Court.  Given that, some were surprised with her opinion in the McCutcheon case, even though a convincing argument can be made that she did no more than follow existing law.

A three-judge panel of the U.S. District Court for the District of Columbia rejected the plaintiffs’ challenges.  Writing for the Court, Judge Brown determined that the aggregate contribution limitations would not be evaluated under strict scrutiny, as the plaintiffs urged.  Relying on the reasoning in Buckley, she explained that contribution limitations are subject to a lower level of review because they implicate a contributor’s associational rights more than speech rights: “the transformation of contributions into political debate involves speech by someone other than the contributor.”

The plaintiffs did not oppose the base contribution limitations regulating the amount that an individual or group can give to a single political candidate or committee.  Hence, the court assumed that, in light of Buckley, those limitations were constitutional.  After all, the government had a sufficiently important interest to prevent actual corruption or the appearance of corruption through contributions given during the election campaign cycle. On that basis, the three-judge court held that the aggregate contribution limitations were also constitutional as a means to prevent evasion of the base limits.

Eliminating the aggregate restriction, Judge Brown reasoned, would enable a contributor to give half a million dollars to a joint fundraising committee that included a national party committee and others.  Eventually that check could be transferred to a single party committee that coordinated expenditures with a political candidate.  “The candidate who knows the coordinated expenditure funding derives from that single large check at the joint fundraising event,” she stressed, “will know precisely where to lay the wreath of gratitude.”  Having justified the aggregate contribution limits, the district court rejected the plaintiffs’ subsidiary arguments that they were unconstitutionally low and overbroad.  “It is not the judicial role to parse legislative judgment about what limits to impose,” Judge Brown concluded.  She nonetheless conceded that “the constitutional line between political speech and political contributions grows increasingly difficult to discern.”

(After McCutcheon, the same three-judge district court denied a First Amendment claim in a related case, James v. FEC, challenging the aggregate contribution limits of the Bipartisan Campaign Reform Act (BCRA). The James opinion, however, was written by U.S. District Judge James E. Boasberg.)

Friends of the Court    

Some twenty amicus briefs have been filed with the Court in the McCutcheon case.  On the one hand, some argue for generous interpretations of the First Amendment.  For example, there are those briefs filed by the Cato Institute (Ilya Shapiro), Senator Mitch McConnell (Bobby R. Burchfield), and the Thomas Jefferson Center for the Protection of Free Expression (Joshua Wheeler).  On the other hand, some offer far more restrictive interpretations of the First Amendment, such as those briefs filed by Professor Larry Lessig and the Constitutional Accountability Center, the Brennan Center for Justice (Daniel F. Kolb), Americans for Campaign Reform (Charles Fried),  Representatives Chris Van Hollen and David Price (Seth P. Waxman), and certain Democratic Members of the United States House of Representatives (Paul M. Smith).

The briefs challenging the relevant provisions of BCRA contest any relaxed standard of judicial review for contribution limitations; argue that the aggregate limits on contributions abridge First Amendment rights of speech and association; posit that those limits are not narrowly tailored to serve the government’s anti-corruption rationale; and contend that the aggregate limits should be invalidated because they functionally operate as restrictions on expenditures.  A few more ambitious briefs, such as Cato’s, deride any First Amendment distinction between political contributions and expenditures as untenable and unworkable.  Hence, they call on the Court to overturn Buckley’s holding as to the validity of all contribution restrictions, base or aggregate.

By contrast, those briefs asking the Court to uphold BCRA offer various arguments based on the guiding principles of stare decisis, the desirability of judicial deference to the nation’s politically accountable branches, the need for recognition of legislative expertise, and the saliency of the government’s interest in battling corruption.  Several of the briefs also tender originalist arguments on the Founders’ broad understanding of political corruption, exceeding the quid pro quo view of corruption.

Looking back, moving forward

We know that money talks, but that is the problem, not the answer.

                                               — Anthony Lewis, Feb. 5, 1976
To me, [the McCain-Feingold law] is nothing less than outright
suppression of speech of the most odious nature.
                                                — Floyd Abrams, 2005


Thirty-eight years ago, Yale Law School Professor Ralph K. Winter, noted Washington lawyer Bryce M. Claggett and ACLU attorney Joel Gora squared off against Harvard Law Professor Archibald Cox, distinguished lawyer Lloyd N. Cutler, Attorney General Edward Levi, and Solicitor General Robert Bork over the constitutionality of the Federal Election Campaign Act of 1971, as amended in 1974.  Despite the efforts of this illustrious group, the Supreme Court’s decision in Buckley v. Valeo was far from a paradigm of clarity.

Aided by their law clerks, who included Kenneth Starr (Warren Burger), Dennis Hutchinson (Byron White), and Craig Bradley (William Rehnquist), the eight-member Court produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.  As Laurence Tribe describes it, confusion may have arisen from the expedited review given the case: the Justices “indulged in more than a little empirical speculation about such issues as the circumvention of expenditure limits and the impact of those limits on campaign speech.”  Whatever the explanation, Buckley has been powerful cannon fodder for critics.  It has been lambasted as “long and rambling, an obvious pastiche of differing agendas” (Frank Sorauf, 1994).  It has been ridiculed for being obsessed with a simplistic view of quid pro quo corruption without due regard to systemic problems (Vincent Blasi, 1994).  And the Buckley Court’s constitutional logic has been denounced for its “inconsistency between legitimizing caps on individual contributions and voiding expenditure limits as conflicting with the core values of the First Amendment” (Melvin Urofsky, 2005).

Since the Buckley decision was rendered in 1976, the Supreme Court has heard sixteen campaign finance cases in which First Amendment claims were resolved.  Such constitutional challenges were sustained in ten of the decisions.  Tellingly, five of those were decided since John Roberts became Chief Justice, and in all of them the First Amendment claim prevailed.  Even more revealing, the Chief Justice and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito voted in all five cases to invalidate the campaign finance laws on First Amendment grounds.  Finally, Justices Kennedy, Scalia, and Thomas have openly called for Buckley to be overruled.

Against this backdrop, SCOTUSblog is pleased to offer informative viewpoints that may add a measure of light to Buckley’s darkness.  The contributors to this symposium are Erwin Chemerinsky (a constitutional law scholar), Robert Corn-Revere (a First Amendment lawyer), Joel Gora (a campaign finance and election law expert), Justin Levitt (an election law authority), Tamara Piety (a First Amendment scholar), and Adam Winkler (another constitutionalist).

Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington School of Law.  David Skover is the Fredric C. Tausend Professor of Constitutional Law at Seattle University School of Law.

Recommended Citation: Ronald Collins and David Skover, Symposium: McCutcheon v. Federal Election Commission, SCOTUSblog (Aug. 12, 2013, 11:18 AM),