Bench Memos

The Next Citizens United?

The U.S. Supreme Court will hear argument in McCutcheon v. FEC, a major challenge to federal campaign-finance laws, tomorrow. Some critics are already gloomily comparing McCutcheon to the Supreme Court’s controversial 2010 ruling in Citizens United v. FEC, which freed corporations and unions to spend money on political speech.

These critics are right about one thing: McCutcheon is a big deal, and possibly a bigger deal than Citizens United. But that’s cause for celebration, not despair.

First some background. Shaun McCutcheon is an Alabama resident who in 2012 wanted to make political contributions of $1,776 to 27 Republican candidates for federal office. Individually, each of these contributions was perfectly legal and well below the $2,600 maximum. But if Mr. McCutcheon had gone forward with his plan, he would have violated a little-known provision of federal law that limits the total amount of political contributions that any one person may give to candidates, currently set at $48,600.

These “aggregate” limits make little sense. If Shaun McCutcheon is allowed to make 18 contributions of $2,600 to federal candidates, there is no good reason why a 19th contribution should be illegal. Most states do not have these kinds of aggregate limits, and there is no evidence that states without such limits are more corrupt or less well-governed than those that do.

Nevertheless, campaign-finance proponents are freaking out about McCutcheon. Bear in mind, these are the same people who breathlessly predicted the death of democracy following the Supreme Court’s 2010 ruling in Citizens United, predictions that turned out to be wrong.

To be sure, Citizens United resulted in a big increase in political spending. But what the critics ignore is what happened next: Democrats, despite being massively outspent by Republican groups, held on to the presidency and the Senate, and actually picked up seats in the House. What this teaches us is that no matter how much is spent on political campaigns, electoral results remain firmly in the hands of voters.

That said, it will be a big deal if the Supreme Court gets rid of aggregate contribution limits. That’s because, since 1976, the Supreme Court has applied different constitutional tests to limits on political expenditures, which are generally struck down, and limits on political contributions, which are generally upheld.

McCutcheon could weaken this distinction or even eliminate it entirely. If it does, individual contribution limits — like the current $2,600 limit for federal elections contributions — could be held unconstitutional in a future case. That would essentially spell the end of campaign-finance regulation at both the federal and state level.

So why is this cause for celebration? There are at least four reasons.

First, and most fundamental, we should feel glad whenever courts stand up for First Amendment rights. Political contributions are an important and venerable form of peaceful political association. Striking down contribution limits would simply be a properly engaged court fulfilling its highest duty.

Second, ending contribution limits would likely improve the tone of our political debate. One of the reasons uper PACs and 501(c)(4) organizations run such nasty ads is because contribution limits prohibit them from coordinating their message with more temperate candidates and political parties.

Third, ending contribution limits would make it easier for new voices to enter the political debate. Contribution limits fall hardest on political outsiders who lack an established fundraising base. Getting rid of contribution limits would mean that third-party candidates would have an easier time raising the money necessary to run competitive races.

Fourth, ending contribution limits makes sense because they don’t work. After more than three decades of federal campaign-finance restrictions, our government is as dysfunctional as it has ever been, and public trust in government is mired at historic lows.

So is McCutcheon v. FEC the next Citizens United? No. With any luck, it will be even better.

Paul Sherman is an attorney at the Institute for Justice, which filed a friend-of-the-court brief in McCutcheon v. FEC.

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