Back to the Basics for Political Speech

by Bobby R. Burchfield
In McCutcheon, the Roberts Court returns to First Amendment principles.

Chicken Little is a campaign-finance reformer. We know because, according to the reformers, “the sky is falling” following the Supreme Court’s recent First Amendment ruling in McCutcheon v. Federal Election Commission. The McCutcheon decision struck down the so-called “aggregate limit” on campaign contributions. Immediately, the campaign-finance-reform community predicted apocalypse. Typical is the statement by Democracy 21 that the ruling “overturned 40 years of national policy and 38 years of judicial precedent” and continued the Court’s “march to destroy the nation’s campaign finance laws.”

The reform community is upset because the Roberts Court has returned to First Amendment basics in reviewing campaign-finance restrictions on core political speech. The Court is correcting the permissive review of regulations that saw its high-water mark when the Court largely upheld the McCain-Feingold restrictions eleven years ago in McConnell v. FEC.

The ruling in McCutcheon is very simple. Federal law contains both “base limits,” which were not at issue in McCutcheon, and “aggregate limits,” which were. A base limit is the amount an individual contributor may give to a single candidate per election or to a political committee, such as a political party, every year. An “aggregate limit” is the total amount an individual may legally give each two-year election cycle to all candidates, and a separate total the individual may give each election cycle all political committees. The McCutcheon majority held that Congress has no legitimate purpose, once a contributor has given the maximum amount to nine candidates, for punishing the contributor for giving the same amount to a tenth candidate.

The greater significance of McCutcheon, and its precursor, Citizens United, is that the Roberts Court is returning to First Amendment basics in the area of campaign-finance regulation. Most students of the First Amendment would rank the Supreme Court’s decision in New York Times v. Sullivan, which invoked the First Amendment to reverse a crippling defamation verdict against the Times, as one of the great First Amendment precedents in the nation’s history. Many forget, however, that the subject of the Times lawsuit was a paid advertisement criticizing a public official. The decision vindicated the right of the Times, a corporation, to publish the advertisement. As the Court explained, the First Amendment protects robust, wide-open public debate, especially commentary about public officials, and for this reason sets a high bar for a public official to secure a defamation award in America.

Like the right to speak harshly about government officials, the right to raise and spend money is essential to unfettered political debate. Restrictions on giving and spending money necessarily circumscribe the debate, and under black-letter First Amendment law such restrictions can survive only if they further a compelling government purpose. McCutcheon and Citizens United strongly reconfirm that point. These decisions have also reiterated that the prevention of actual or apparent quid pro quo corruption, meaning dollars for political favors, is the only constitutionally sufficient basis for restricting giving and spending for political speech. This focus on quid pro quo corruption became established precedent in the 1970s and remained so through the mid-1990s.

As the reform community’s demand for more and more campaign regulation intensified, however, the Court deviated from this precept in a series of decisions culminating in the 2003 McConnell decision. The Court redefined the notion of “corruption” so broadly that the First Amendment provided little protection against restrictions on core political speech. Corruption became “war chest corruption” to allow regulation of any entity deemed to have too much money, or “access corruption” to allow regulation of contributions on the ground that contributors are allowed to meet candidates (sometimes only in a receiving line), or even mere “gratitude corruption,” which affirmed restrictions on political giving and spending because any candidate benefiting from that activity might show gratitude in the legislative process. By expanding the notion of “corruption” to meaninglessness, the Court seriously degraded the protections of the First Amendment.

Like Citizens United, McCutcheon did not change the law so much as return it to where it was and should be. One would not know that from the bellowing of the pro-regulation community, who predict a great loss of public confidence in the political process.

But wait! When the McCain-Feingold statute was signed in March 2002, Gallup reported public approval of Congress at 63 percent. By January 2010, just before the Citizens United decision and with McCain-Feingold in full effect, public approval of Congress stood at 24 percent. In short, even while the most onerous restrictions on political giving and spending in history were in effect, public approval of Congress dropped precipitously. Restrictions on political speech do not seem to enhance public trust or approval of government.

We have come to expect bold (but inaccurate) predictions of greater public confidence in government due to tighter campaign regulations, and then hysterical (but exaggerated) predictions of apocalypse if those regulations are struck down. Chicken Little would be proud.

— Bobby R. Burchfield, a partner at McDermott Will & Emery, argued before the Supreme Court in McCutcheon v. FEC for Senator Mitch McConnell.​

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