McCutcheon v. FEC: A Victory for the First Amendment

This morning, the Supreme Court released its final decision in McCutcheon v. FEC, the first case argued this term. I had previously blogged about it here, and as I predicted, the opinion took on a 4–1–4 split. Although I couldn’t say after oral argument which way the decision would go, the court (as I hoped) upheld the First Amendment’s broad protections for political speech, striking down aggregate limits on political contributions (which effectively limit the quantity of races in which a particular donor can give).

I will have more thoughts after I’ve digested the whole opinion (the slip opinion is 94 pages), but here are a few preliminary observations:

The plurality opinion is written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Alito. It focuses mainly on the application of Buckley v. Valeo, a 1976 Supreme Court decision that established a framework for regulating campaign contributions. Buckley recognized that the First Amendment’s protections generally include rights of both speech and association (“Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”). Today’s opinion vindicates those constitutional rights within the Buckley framework.

As predicted, Justice Thomas voted to strike down the donation restrictions, writing a separate opinion concurring in the judgment in which he argued that Buckley “denigrates core First Amendment speech and should be overruled.” This is no surprise, given the numerous opinions he has devoted to this issue over the last 18 years. In Justice Thomas’s view, Buckley distinguishes impermissibly between political giving and political spending, allowing less rigorous scrutiny for political giving. Justice Thomas’s opinion, which controls the plurality opinion, will leave us with some interesting questions about what reasoning will bind the lower courts.

Justice Breyer’s dissent on behalf of the remaining justices takes issue with the plurality’s view that “corruption” justifying speech regulations refers to quid pro quo giving. Instead, Justice Breyer articulates his definition of corruption in broad political-theory terms, under which the Supreme Court ensures that politicians will not give “undue influence” or be “too compliant” with their contributors’ views or gain “privileged access to and pernicious influence upon” elected officials. But the plurality opinion rightly dismisses efforts toward these goals as attempts to “fine-tune” the electoral process.

And that dispute introduces the other major problem with this entire system of regulation: whether it is trying to “level the playing field” or something else, policing contributions beyond corruption put the government in the position of limiting and distinguishing the types of acceptable speech, which is exactly what the First Amendment is designed to prevent.

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

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