The Supreme Court decided last week in McCutcheon v. Federal Election Commission that aggregate donation limits, which capped the total on how much someone can contribute to candidates and political parties, per election, violated the free speech protections of the First Amendment, 572 U.S. ____(2014). If this sounds familiar, it should: the Court used similar reasoning in Citizens United v. Federal Election Commission, to hold that restrictions on corporate spending in political campaigns also violated the First Amendment's protection of political speech. Citizens United, 558 U.S. 310 (2010). Citizens United gave rise to the “Super PAC,” which can raise and spend unlimited amounts of funds on behalf of political candidates, provided their activities are not coordinated with any candidate or campaign committee. Consider McCutcheon to be a counter-balance, at least for political parties: they can now similarly raise unlimited amounts from donors as Super PACs. At the very least, donors should expect to get more fundraising calls and emails.
Individual and Aggregate Campaign Donation Limits, Pre- and Post-McCutcheon. Limits on both campaign donations and expenditures were set by the Federal Election Campaign Act, 2 U.S.C. § 431 et seq. (“FECA”), and then amended by the Bipartisan Campaign Reform Act Public Law 107-155, (“BCRA”). The donation limits apply to how much an individual may contribute to a political candidate, party committee or political action committee (“PAC”). They also apply to how much these last three entities can give each other.
The Federal Election Commission lists the inflation-adjusted amounts an individual may contribute for the 2013-2014 election cycle:
- $2,600 per candidate/candidate committee per election (primary and general)
- $32,400 per year to a national party committee
- $10,000 per year to a state, district or local party committee
- $5,000 per year to a political action committee
Those amounts are capped so that an individual may only donate:
- $48,600 to all candidates; and
- $74,600 to all PACs and party committees, for 2013-2014
It is these latter caps on total donations that were challenged by plaintiff Shaun McCutcheon and one of the party committees he wished to donate to, the Republican National Committee. Chief Justice Roberts, writing for the Court, concluded that those limits were invalid under the First Amendment.
McCutcheon rejects reasoning that without aggregate limits, individual limits are useless. The limits on campaign donations and expenditures first put into place under FECA were upheld by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976). In McCutcheon, Chief Justice Roberts discusses the Court’s reasoning in Buckley but notes that “its ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here.” McCutcheon, 572 U.S. at 11. That is because the aggregate limits that were amended by BCRA created “a different statutory regime.” Further, a number of protections put in place under both FECA and BCRA:
- Prohibit donors from creating or controlling multiple affiliated political committees (so-called “anti-proliferation” provisions found at 2 U.S.C. § 441a(a)(5)); and
- Prohibit donors from circumventing individual limits by donating to multiple political campaigns and then having those funds “earmarked” to a specific candidate (so-called “anti-earmarking” provisions found at 2 U.S.C. § 441a(a)(8))
Finally, the limits in place on how much political campaigns contribute to each other also serve as another layer of base contribution limits; i.e., even if a donor wanted contributions to be re-distributed to a different political campaign or committee, these entities are limited as to how much they can transfer between themselves. Id. at 11-13. So McCutcheon found that even without aggregate limits, donors are limited from exercising excessive influence with high levels of campaign contributions.
The First Amendment presents a high hurdle to contribution limits. McCutcheon found significant First Amendment concerns were implicated by the contribution limits. “[T]he aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base [individual] limits,” it notes. Further, “to require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process.” Id. at 15-16. The only “legitimate government interest” that would support such contribution limits, the Court found, was “preventing corruption or the appearance of corruption.” Further, the Court found, citing Buckley, that Congress may only target one type of corruption, quid pro quo corruption. Here, “[s]pending such large sums of money in connection with elections, but not in connection, with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption.” In reaching this view, the majority rejected the dissent’s view of protecting the public’s interest in collective speech. Instead, it notes that the First Amendment “does not protect the government,” but rather the individual. Id. at 17-19.
From Citizens United to the Super PAC to an end to aggregate contribution limits. What will the Supreme Court decide next? Citizens United held that corporations, trade associations and labor unions could use their general treasuries to fund direct political advertising against political candidates provided that this was not coordinated with a candidate or campaign committee, so-called “independent expenditures.” Citizens United. The same year as the Court’s decision in Citizens United, the United States Court of Appeals for the District of Columbia held that as a result of Citizens United, the government could not limit contributions to PACs set up specifically to make such independent expenditures, so-called “Super PACs.” Speechnow.org v. FEC, No. 08-5223, D.C. Cir. (2010). Now McCutcheon has gone the next step, ending aggregate limits for individual campaign donations. With the last two remaining (and attractive) campaign finance restrictions being the ban on direct contributions from corporations and the individual limit on campaign donations, we do not expect the decision in McCutcheon to be the last word. Justice Thomas in his concurring opinion suggests as much, noting: “[t]his case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment. Until we undertake this reexamination, we remain in a 'halfway house' of our own design.” Concurring Opinion at 5.