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Divided Court strikes down campaign contribution caps: In Plain English

Back in October, when the Court heard oral argument in a challenge to the overall caps – known as “aggregate limits” – on how much an individual can contribute to candidates for federal office, political parties, and political action committees, there wasn’t a whole lot of suspense.  Given the Court’s recent campaign finance rulings, it seemed clear that a majority of the Justices would vote to strike down at least some of the caps; the only real question was whether they would strike down them all.

Today we got our answer from the Court, and it was a decisive “yes”:  all of the aggregate limits must go.  Let’s talk about today’s decision in McCutcheon v. Federal Election Commission in Plain English.

As I explained in my preview of the case in October, there are (at least until today) two kinds of limits on campaign contributions.  The first is what is known as the “base limits” – the maximum that you can contribute to a candidate, political party, or political action committee in an election.  The aggregate limits are the second kind:  in a two-year period known as an “election cycle,” you can donate no more than $48,600 to all candidates combined and no more than $74,600 to political parties and political action committees.

An Alabama businessman named Shaun McCutcheon went to court to challenge the aggregate limits.  He didn’t ask for the right to give more money than the base limits to any particular candidate; instead, he wanted to give money to many more candidates, but the aggregate limits prohibit him from doing so.  That, he argued, violates his free speech rights under the First Amendment.

Although a lower court disagreed with McCutcheon, he found a more receptive audience in the Roberts Court, which has consistently voted to overturn campaign finance regulations.  Chief Justice John Roberts wrote the opinion for the Court, which was joined by Justices Antonin Scalia, Anthony Kennedy, and Samuel A. Alito.  (Justice Clarence Thomas wrote his own opinion saying the Court should go even further, but the Chief Justice’s opinion is the controlling one.)

The Chief Justice’s opinion began by reiterating that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders” – including by making campaign contributions.  The First Amendment protects that right, the opinion explained, but Congress can put some restrictions on your ability to exercise that right by contributing directly to candidates as long as it does so to guard against corruption or the appearance of corruption.

Here, the Chief Justice continued, there is only one kind of corruption that Congress can try to combat by limiting campaign contributions:  “quid pro quo” corruption, which involves “a direct exchange of an official act for money.”  Quoting the Court’s controversial 2010 decision in Citizens United v. Federal Election Commission, the Chief Justice made clear that making campaign contributions in the hope of gaining influence and access does not constitute corruption.  To the contrary, in the Court’s view, influence and access exemplify “a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

Having defined “corruption” to include only “quid pro quo” corruption, the Chief Justice then rejected the government’s argument that aggregate limits are necessary to prevent such corruption.  If Congress believes – as it apparently does – that there is no risk of corruption for someone like McCutcheon to give the base limit to nine candidates, how is there suddenly a risk of corruption if he gives the base limit to a tenth candidate?  The Court was equally unmoved by the government’s argument that the aggregate limits are needed to prevent evasion of the base limits.  Examples of how such evasion might work, the Court wrote, “are either illegal under current campaign finance laws or divorced from reality.”  But if the federal government does really wants to prevent evasion of the base limits, the Court suggested, Congress has other, less draconian options – for example, restricting a candidate’s ability to transfer money from a campaign contribution to a political party and vice versa.

Justice Clarence Thomas agreed with the result that the other four Justices reached – that is, that the aggregate limits violate the Constitution and therefore must go.  But he would have taken the extra step of treating limits on campaign contributions just like limits on how much campaigns can spend – which would require the base limits to pass the strictest test that courts use to determine whether a law is constitutional.  Thomas’s opinion left little doubt that, if his view were to carry the day, the base limits would not survive that test either.

Justice Stephen Breyer dissented from the decision, in an opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.  In other words, the Court was divided five to four along ideological lines.  As my colleague Mark Walsh reported earlier today, Breyer took the relatively rare step of reading a summary of his dissent from the bench.  That normally signals a sharp disagreement with the Court’s decision, but today Breyer’s tone was “steely” rather than “angry.”

Breyer’s dissent lamented that the Court’s decision “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”  In his view, “corruption” is not limited to scenarios involving a quid pro quo, which he described as “an act akin to bribery.” Instead, it includes exactly the kind of efforts to use money to obtain influence and access to elected officials that the Chief Justice’s opinion characterized as “a central feature of democracy.”  This is so, Breyer explained, because if people believe that elected officials only pay attention to big-money donors, they may lose faith in the political process altogether.

Breyer next contended that the Court is just wrong when it asserts that, even if the aggregate limits are removed, there is still no way to get around the base limits.  Here the dissent painted a very different picture from the rest of the Court, predicting that “donors can and likely will find ways to channel millions of dollars to parties and to individual candidates.”

Whose vision of the future of campaign finance will prevail – the dissent’s apocalyptic one or the Chief Justice’s more optimistic one?  You can be sure that journalists and election law experts will be paying close attention over the next few years.  We can also be confident that the decision today will spawn new campaign finance challenges – including, in all likelihood, to the “base limits” themselves.  Stay tuned . . . .

Recommended Citation: Amy Howe, Divided Court strikes down campaign contribution caps: In Plain English, SCOTUSblog (Apr. 2, 2014, 11:01 PM),