Politics & Policy

Free Speech at Last: McCutcheon Decision Just Right

Individual speech saved from infringements.

The Supreme Court took another step toward protecting political speech Tuesday by rejecting arbitrary campaign-finance restrictions. In McCutcheon v. Federal Election Commission, the Court struck down an aggregate limit Americans can contribute to political figures during an election cycle.

It all began when the plaintiff in McCutcheon v. FEC, Shaun McCutcheon, expressed interest in contributing $1,776 to a number of candidates he supported. Contributions to candidates are already limited to $2,600 per election, so it appeared he was well within the law. However, beyond the limits on giving to any individual candidate, McCutcheon learned that the law limited the total amount he could give to all candidates to $48,600.

This meant that McCutcheon could make his desired contribution of $1,776 to just 27 candidates — or just 13 if he wanted to contribute that amount in both the primary and general elections. And if McCutcheon wanted to contribute the legal maximum of $2,600 in each election — or $5,200 per candidate, combining primary and general elections — he could support only nine candidates.

McCutcheon challenged the law on the eminently sensible grounds that if Congress has deemed a contribution of $2,600 per election ($5,200 per cycle) to be a non-corrupting amount, then Candidate 10 was no more corrupted by the contribution than Candidate 9. Simply put, the aggregate limits served no anti-corruption interest. And the Court has long held that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

The 5–4 majority’s decision, by Chief Justice John Roberts, notes that “we have consistently rejected attempts to suppress campaign speech based on other legislative objectives. No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equaliz[e] the financial resources of candidates.’”

The majority opinion also makes the point that “the Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” To the government’s argument that McCutcheon could support more candidates by reducing the amount he gave to each one, Roberts wrote that to ”require one person to contribute at lower levels because he wants to support more candidates or causes is to penalize that individual for ‘robustly exercis[ing]’ his First Amendment rights.”

McCutcheon was joined as a plaintiff by the Republican National Committee. Political parties have also worked under an aggregate cap — a donor can give a maximum of $32,400 to a national political party, $10,000 to a state or local party, and $5,000 to a PAC. But donors would face a legal maximum if they wanted to give the maximum legal contribution to their party’s Senate and House committees, let alone a company PAC, local party committee, and an ideological group the donors supported. Now individual Americans have that right, as that aggregate limit on giving also bit the dust.

Importantly, the decision strengthens the level of scrutiny courts must use when considering contribution limits. At argument, the government merely asserted the possibility of a number of implausible, if not outright illegal, means to pass more money to candidates under a system without aggregate limits.

The majority opinion dispatched each of these scenarios, noting that in the many years since the 1976 Buckley v. Valeo decision, Congress and the Federal Elections Commission have enacted a number of safeguards against these kinds of activities. 

For example, the FEC enacted regulations that limit the ability of individuals to circumvent base limits through “un-earmarked” contributions to political committees.  In other words, if donors give money to a party committee but direct the party to give the money to a candidate, then the money counts as a contribution to the particular candidate, and if this is not reported as such, the donors are breaking the law. Likewise, laws and regulatiosn prevent donors from being able to create and control multiple political committees, preventing donors from simply cloning organizations in order to circumvent limits.

The majority opinion called the government’s arguments “far too speculative” and outright rejected the government’s rationale that the opportunity for corruption exists whenever legislators are handed a large check earmarked for someone else. The Court noted that the vast majority of states have no aggregate giving cap and none of the horror stories cited have come true. The best Justice Breyer could do, writing for the dissent, was to argue that there is probably massive law-breaking going on in the states but that the criminals are too smart to get caught.

The practical results of this decision will be to make fundraising easier for party committees and candidates. That is almost certainly a good thing and should help ease concerns that “super PACS” are too influential with parties. Don’t expect a landslide in new giving, however, as the old aggregates did not affect most donors, who contribute to only a few candidates.

Ultimately, this decision is a significant victory for the First Amendment. Perhaps more important than the immediate result is the insistence that the government must have an actual, rather than conjectural, theory of corruption to be prevented. The “monsters under the bed” theory of constitutional jurisprudence seems headed for the dustbin.

As Justice Roberts wrote, “If the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

Bradley Smith is the chairman of the Center for Competitive Politics, and the Visiting Copenhaver chair at West Virginia University College of Law. From 2000 to 2005 he served on the Federal Election Commission.

Bradley A. Smith is chairman of the Institute for Free Speech and the Blackmore/Nault Professor of Law at Capital University. He served on the Federal Election Commission from 2000 to 2005.


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