I Remember My First Deconstruction of Campaign Finance Law

As Lena has been covering the notable Supreme Court decisions of this past summer, I figured it would be instructive to preview one of this fall’s most significant cases. Next Tuesday, the justices will once again take up campaign finance law when they hear arguments in McCutcheon v. Federal Election Commission. You will surely recall the Court’s precedent shattering opinion in Citizens United v. Federal Election Commission, which found that §203 of the Bipartisan Campaign Reform Act of 2002’s (BCRA) restrictions on independent political expenditures by corporations and unions violated the First Amendment. It is important to note that, while a novelty when applied to corporations, the Court has long held independent political expenditures – such as a film criticizing Hillary Clinton – implicated an individual’s freedom of speech most intimately. Of course this independence is often at best theoretical, as we are all familiar with the top aides who depart campaigns to lead super PACs supporting their former employers. Nevertheless, it is enough to know that the Court has applied its most stringent standard of strict scrutiny – first to individuals and, since Citizens United, more controversially to corporations – for expenditures, which requires a statute be narrowly tailored to meet a compelling governmental interest.

In McCutcheon, appellants the Republican National Committee (RNC) and Shaun McCutcheon, a wealthy Alabama businessman who has contributed to various conservative candidates, committees, and causes, contest the constitutionality of another section of BCRA. In particular, they challenge BCRA’s biennial aggregate contribution limits, which for the 2013-2014 election cycle cap the amount an individual can give to all federal candidates for office at $48,600; the amount he or she can give to political committees that contribute to candidates at $74,600; and all contributions at $123,200. Although he already contributed $33,088 to sixteen federal candidates during the 2011-2012 cycle, McCutcheon alleges that he wished to contribute $1,776 more to each of them (because, well, any other amount would be downright un-American). To further establish injury and seek the Court’s judgment on all of BCRA’s aggregate limits, McCutcheon also claims that he wished to contribute $25,000 to each of the Republican national political committees (RNC, NRSC, NRCC). All of these contributions are distinct from those at issue in Citizens United, or at least the Court has treated them so for decades. Rather than expenditures spent to independently promote an individual or organizational belief, these are instead contributions, since they were all given either directly or indirectly to the candidate’s campaign.

In the seminal case Buckley v. Valeo, the Court first drew this First Amendment distinction between expenditures and contributions with respect to provisions of BCRA’s antecedent, the Federal Election Campaign Act of 1971. Whereas expenditures implicate freedom of speech rights, contributions are more related to associational freedoms, since “the transformation of contributions into political debate involves speech by someone other than the contributor.” Furthermore, because contributing monetarily to a candidate’s campaign is but one of many ways to manifest this associational freedom, these limits pose only a marginal cost First Amendment rights. Consequently, the Court in Buckley elected not to apply strict scrutiny to contribution limits, deeming them permissible so long as the government “demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment” of associational freedoms. A three-judge panel of the U.S. District Court for the District of Columbia utilized this less burdensome requirement in McCutcheon, rejecting petitioners’ attempt to apply strict scrutiny and invalidate the relevant parts of BCRA “for lacking a constitutionally cognizable interest.” This case is therefore a de facto relitigation of Buckley, with appellants hoping the Roberts court will be amenable to another originalist deconstruction of campaign finance law.

Indeed, several of the Court’s conservative justices have previously expressed their desire to eliminate the expenditure/contribution dichotomy set forth in Buckley. The Court would err, however, by disturbing this interest balancing equilibrium. As the D.C. District Court found, the governmental interests identified in Buckley – namely, preventing corruption and the appearance of corruption as well as preventing the circumvention of contribution limits imposed to further the government’s anti-corruption interest – surely meet the threshold of sufficient importance. First, one need look no further than the lobbying scandal in the Bush administration to know that quid pro quo corruption, to say nothing of ubiquitous, more informal influence, remains a problem the government needs to affirmatively combat. While “the scope of such pernicious activities can never be reliably ascertained,” the Court observed in Buckley, “the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.” Perhaps this threat is more attenuated today, as President Obama has not intervened in any Department of Agriculture judgments affecting huge campaign contributors. But even this is too much to be maintained: the revolving door, the correlation between committee members and contributors subject to their jurisdiction, and ambassadorial appointments for large donors are all thoroughly unoriginal stories.

Second, the Buckley court took caution to emphasize that aggregate contribution limits were a corollary of base contribution limits, which constrain the amount given to any particular candidate and whose constitutionality appellants do not contest. For without aggregate limits as a complement, base limits could easily be circumvented, with individuals “contribut[ing] massive amounts of money to a particular candidate through the use of unearmarked contributions” to committees likely to contribute to that candidate. As a result, even assuming arguendo that aggregate limits do not themselves serve the interest of limiting corruption – since the donations BCRA precludes McCutcheon from making are all in this instance within the base contribution limits – they remain constitutional due to their inextricable ties to base limits and their effectiveness. This is not to say that upholding aggregate limits will save us from undue influence in federal elections. Indeed, these limits did not preclude McCutcheon from contributing as much as he wanted – and contribute he did – to super PACs that not-so-tacitly and not-so-independently advocated for the candidates he supported. It is to say, though, that the Court ought not strain stare decisis and contort itself into further diminishing a continually compelling governmental interest. Contributions remain distinct from expenditures, and the prospect or reality of corruption demands a level of scrutiny lesser than the government’s regulation of dissident publications.

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