Bench Memos

McCutcheon v. FEC: The ‘Appearance of Corruption’

The Supreme Court’s Wednesday opinion in McCutcheon v. FEC striking down aggregate political contribution limits has thus far been accused of a wide variety of sins, including that it opens the floodgates to “corruption.” Although it’s likely that anything short of a total vindication of pervasive contribution limits would have failed to satisfy the Left, Justice Breyer’s dissent took a more precise approach, criticizing the majority for failing to expand the definition of “corruption” to “influence over or access to” elected officials. Let’s see if this criticism is justified.

McCutcheon struck down aggregate limits on campaign donations, but left intact per-campaign donation limits (“base limits”) that cap the amount that a particular donor can direct to a particular candidate. In this case, for instance, Shaun McCutcheon brought suit because he wanted to give the symbolically significant amount of $1,776, less than the base limits, to multiple independent campaigns. The aggregate limits, however, capped the number of campaigns to which he could contribute this amount. As a practical matter, aggregate limits imposed a limit on the number of campaigns that he could meaningfully support.

Although the government offered several interests supporting this limitation, the plurality opinion argues that the only constitutionally permissible governmental interest served by donation limits is actual or apparent quid pro quo corruption, that is, the actual or apparent exchanging of direct contributions for control of the officeholder’s official duties. Thus, individual donation limits are themselves a prophylactic measure for achieving this governmental interest.

Justice Breyer’s dissent takes issue with this proposition, beginning with what we might call the Justice Breyer Theory of Political Speech. Breyer argues that the purpose of speech is to “secure government action.” This portion of Justice Breyer’s opinion is nothing if not abstract, although it does occasionally make reference to actual case law. Citing a series of Progressive-era cases, Justice Breyer’s dissent suggests that the purpose of freedom of speech under the First Amendment is to permit the people to engage in unimpeded “collective speech” with their representatives, and that the “appearance of corruption” arises when the public believes that its “efforts to communicate with its representatives or to help sway public opinion have little purpose,” ultimately resulting in a loss of interest in political participation and loss of faith in those who govern.

Now, one might assume that Justice Breyer would simply rely on these broad propositions to articulate a broad definition of “corruption,” but he doesn’t. Instead, he draws a circle: governmental interests in preventing “corruption,” defined as hindrances to electoral speech, are actually based on the First Amendment itself. Indeed, Justice Breyer argues, campaign-finance laws are not only a potential violation of the First Amendment, they are actually necessary to strengthen it. Thus, Justice Breyer manages to pit the First Amendment against itself, raising the “potential for conflict” (his words) between diametrically-opposed priorities that ostensibly come from the same source. If this isn’t moving the constitutional goalposts, I don’t know what is.

The rest of Justice Breyer’s dissent is predictable, combining vague definitions of “corruption” with a series of hypothetical means of creating “undue influence.” Justice Breyer notes prior case law describing corruption as including “undue influence on an officeholder’s judgment,” whatever that is, and “privileged access to and pernicious influence upon” elected officials. He also identifies a series of hypothetical donations that, he says, illustrate the opportunities for nefarious political activities.

But the dissent inadvertently makes one thing clear: Under the broad definition of “corruption,” there is virtually no way to distinguish between influence, gratitude, or the conduct that Breyer considers “corruption.” As a result, Breyer’s hypotheticals conflate support for a political party or movement with official corruption. If that’s what corruption means, then Breyer’s view would impose essentially no limits on the government’s ability to regulate the political activities of those that it deems too powerful. The plurality rightly notes that the First Amendment requires any ambiguities to be resolved in favor of more speech, not less.

Breyer’s view constitutes a dangerous weakening of the commonsense principle that, in freedom of speech cases, the threat of oppression comes from government, not speech itself. For Breyer’s abstract theory to resist degeneration into practical tyranny, campaign-finance regulators would need to be perfectly nonpartisan, immune from political pressure, and incapable of misunderstanding the messiness of politics. And that’s absurd.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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