Symposium: McCutcheon v. FEC and the fork in the road

The following essay is part of our online symposium on McCutcheon v. Federal Election Commission.

Shaun McCutcheon is a well-to-do businessman from Alabama and a staunch believer in and supporter of the Republican Party and its candidates and causes. So much so that he would like to contribute $25,000 (well below the maximum annual legal contribution of $32,400) to each of the three national Republican campaign committees (the Republican National Committee, the National Republican Senatorial Committee, and the Republican Congressional Campaign Committee) and $1776 (well below the maximum legal contribution of $2600) to each of about  thirty Republican Congressional  candidates whose views and policies he supports and with whom he would like to associate politically. These are the so-called “base” limits on candidate contributions and party committee contributions. Yet even though every one of these proposed contributions would be completely legal and within the limits that Congress has decreed – and even though they would be fully disclosed to the public – he cannot make all of those contributions without committing a felony.

Why? Because those laws also decree, in addition to those base contribution limits that restrict the amount an individual can contribute to a candidate or a political party committee, two separate sets of aggregate limits imposed on the overall amount of all contributions that any person can make in a two-year period to candidate committees ($48,600) and non-candidate committees ($74,600). Because of these additional biennial limits, even though each individual contribution to a candidate or a party committee would be perfectly legal, make too many of these perfectly legal contributions and you could go to jail. In the New Math of our federal campaign finance laws, 1 +1 = 0.

Challenging aggregate contribution limits

In McCutcheon v. Federal Election Commission, those separate aggregate limitations are being challenged as violations of the First Amendment rights of McCutcheon and the Republican Party. The argument is quite straightforward: the only basis for limiting the amount of contributions that can be made directly to candidates is the concern with quid pro quo corruption (trading dollars for political favors) and, by definition, that cannot exist because each of McCutcheon’s proposed candidate contributions is within the legal base limits. And, to the extent that Congress is worried about circumvention of those limits via so-called “conduit contributions” made to party committees that could wind up being used for particular candidates, Congress has already taken care of that problem by putting into place a number of legal baffles and filters to prevent that from happening.

As a result, the argument goes, the aggregate limits are wholly redundant and certainly do not present the kind of compelling , or even substantial, basis to justify limiting the First Amendment rights of contributors to fund the candidates and parties they support and the rights of the latter to benefit from that support. Moreover, they operate less like contribution limits (how much can you give to any one candidate or committee) and more like expenditure limits (how much political speech can you support overall), thereby making them even more vulnerable to invalidation under the Supreme Court’s campaign finance jurisprudence.

Why that is so requires going back to the source: Buckley v. Valeo, the Court’s 1976 landmark decision on the clash between campaign finance restrictions and First Amendment rights. To its supporters, the Federal Election Campaign Act at issue in that case was a proper effort by Congress to deal with the problem of money in politics by severely limiting the raising and spending of it. To its challengers, and I was privileged to have been one of their lawyers, the law cut to the heart of the First Amendment by limiting the ability of individuals and groups to use their resources to get their messages out, and was an Incumbent Protection Act to boot.

The Buckley challengers maintained that the limitations on contributions to and expenditures by candidates and causes were but two sides of the same First Amendment constitutional coin.    Limit one and you limit the other. The less you could raise, the less you could spend, the less you could say. Moreover, fundraising was particularly vital to new and insurgent candidates and parties and voices and points of view who needed seed money to help their ideas reach a critical mass.  (Hence the name of the women’s political funding group, EMILY’S List (Early Money Is Like Yeast.)  Conversely, limits on contributions and expenditures could only entrench incumbents more since they could more easily raise money in $1,000 bites (hence the “Thousand Dollar A Plate Dinner”) and would benefit if their challengers and critics were limited in their ability to spend money against them.

As is well known, the Buckley Court split the difference. Expenditure limitations would be judged more strictly, and invalidated, because they imposed too much of a direct burden on speech and served no acceptable purpose other than the illegitimate goal of limiting speech.   But limitations on contributions to candidates would be judged less strictly on the theory that they embodied association more than speech – even though the candidate used the money, in effect, to speak for the donor – and, if unlimited, might pose the danger of quid pro quo corruption or the appearance of the same, whatever that means.  Thus, a $1,000 cap on contributions to any federal candidate was upheld, and a $25,000 limit on overall federal contributions was upheld to prevent the real possibility of circumvention of the $1,000 limit, given the statutory scheme at that time. But to show how uncertain the line between contributions and expenditures could be, the Court also said that limitations on contributions by candidates to their own campaign were invalid because they burdened speech too much, especially in the absence of the possibility that  candidates could corrupt themselves.

Despite the inherent tensions in the doctrine, the practical problems it has caused – so-called “super PACs” are one recent example, where individuals and groups can make unlimited contributions to support independent expenditures – and the resulting  widespread criticism of it, the expenditure/contribution dichotomy has remained a staple of the Supreme Court’s campaign finance jurisprudence ever since Buckley.  Simply using the dichotomy as a shorthand, however, often obscures more than it enlightens.

The future of Buckley?

Will the McCutcheon case disturb that Buckley equilibrium and call into question the continued validity of contribution limits in general, as some fear? The challengers say it is not necessary to reach that question because, even viewed as contribution limits under the Buckley framework (which they contend requires a much more probing analysis than commonly thought), the aggregate limits are clearly unconstitutional. The aggregate candidate limits are not required to prevent quid pro quo corruption because every separate contribution to a candidate is within the legal base limit. And the aggregate committee caps, claimed to be anti-circumvention safeguards, are constitutionally unnecessary and defective because of all the other statutory and regulatory safeguards in place to insure that the base contribution amount that any one contributor can give to any one party committee cannot be used as a conduit for corruption.

But the challengers also contend that the aggregate limits really operate like expenditure limits – i.e., limiting the donor’s overall ability to support a message they endorse, and controlling not just how much can be contributed, but how many candidates and committees the contributor can express support for.  Given that, strict scrutiny is the standard of review. To the extent that some of the briefs supporting the law fret that eliminating those aggregate limits will give the wealthy too much political influence and sway, they seem to underscore that these can be viewed as questionable expenditure limits designed to “level the playing field” – the kiss of death for any campaign finance law.  Either way, the challengers say, whether viewed as contribution controls or expenditure limits, a careful analysis of the interlocking statutory protections against corruption will show that the aggregate limits fail strict or even close scrutiny and must be struck down.

Enter the Roberts Court

Of course, the $64,000 question is how the Roberts Court is likely to view these issues. The Court has certainly developed a decided track record on campaign finance issues. Five cases, five decisions striking down various campaign finance mechanisms as violating the First Amendment. Pervading these cases is the application of real strict scrutiny to campaign finance laws, measuring the burdens they impose on candidates, parties and groups, carefully probing in great detail the weight of the justifications offered for the mechanism at issue and showing a deep distrust and a severe skepticism of those justifications.  Chief Justice John Roberts wrote a very muscular decision in the Arizona public financing case striking down a scheme that merely gave publicly funded candidates more government financing to counter spending by privately funded candidates. Even that was too much of a burden on the right of the privately funded candidate to spend their own money on their campaign.  Here the restrictions are direct and potent and tell the contributor: You’ve expressed enough support for the candidates and party of your choice.

As is so often the case, the disposition may come down to Justice Anthony Kennedy. He, of course, is the author of the notorious Citizens United v. Federal Elections Commission (2010) decision, for which, despite its support in some quarters as a proper vindication of core First Amendment rights of all groups and individuals, the Court has taken a brutal battering in the court of public opinion.

Many are already raising the specter of the McCutcheon case being another Citizens United, this time dramatically changing the basic law on contribution limits.   But McCutcheon and the RNC are not making that argument and are not challenging the validity of the base limits on contributions to candidates or parties. They think they can win within the traditional Buckley framework that permits contribution regulation, but only if properly justified. And Justice Kennedy in Citizens United went out of the way to say that the case involved independent expenditures only, with no direct impact on the validity of contribution limits. But one of the linchpins of his decision was that the only compelling interest that justifies campaign finance limitations is preventing direct quid pro quo corruption. To the extent the supporters of the law seem to be claiming that contributors like McCutcheon might have greater access to and influence on Republican elected officials, these days that does not seem to be much of a winning argument in the Supreme Court.

Finally, a win for McCutcheon and the RNC would have one other positive effect.  It might give parties and candidates more financial wherewithal to counter the recent rise of “super PACs,” as exaggerated as their electoral impact seemed to be.

The great sage, Yogi Berra, once supposedly said, “when you come  to a  fork in the road, take it.” In Buckley, the Court followed that advice by seeming to take different doctrinal paths in judging the validity of expenditure versus contribution limitations. The McCutcheon case will tell us whether those paths are destined to merge.

Joel Gora is a professor of law at Brooklyn Law School and was one of the ACLU lawyers who argued Buckley v. Valeo in 1976.