McCutcheon v. Federal Election Commission (2014)
Under Buckley v. Valeo (1976), the court upheld Congress’ power to limit campaign contributions in order to prevent corruption.1 In doing so, the court treated contributions different than expenditures because the donations were made directly to a candidate’s campaign, which made the possibility of quid pro quo corruption greater. “That Latin phrase captures the notion of a direct exchange of an official act for money.”2 The Buckley decision gave Congress wide latitude when it came to contributions, but placed expenditures under the protection of the First Amendment as a matter of free expression.
The Federal Election Campaign Act of 1971 (FECA),3 as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA),4 set base limits on how much a donor could contribute directly to a candidate ($5,200), a national party committee ($32,400), a state or local party committee ($10,000), or a PAC ($5,000). These limits applied even if a donor contributed to a party committee and then the committee passed the money onto the candidate (this rule prevented donors from going through an intermediary in order to get around the base limits). The statute also imposed aggregate limits on how much a donor could contribute in total during an election cycle. Thus, donors could only contribute $48,600 to federal candidates and $74,600 to political committees, for a total of $123,200 to candidates and committees during a two-year election cycle.
The appellant, Shaun McCutcheon, alleged that during the 2011–2012 and 2013–2014 election cycles he was prevented by the aggregate limits from contributing to several federal candidates and committees. McCutcheon and the Republican National Committee filed a complaint in federal district court asserting a violation of his First Amendment rights. The District Court dismissed the complaint and upheld the constitutionality of the aggregate limits.
The District Court relied on Buckley in upholding the aggregate limits as a modest restraint upon political activity that served to prevent evasion of the base contribution limits. In Buckley, the majority wrote, “the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.”5 The court recognized that a wealthy donor could get around the base contribution limits by donating funds to many different committees who would then use the funds to support the same candidate. Without an aggregate limit, the base limits were meaningless.
Having previously relied on Buckley in several campaign finance decisions, the above referenced position on aggregate limits posed a dilemma for the Conservative plurality in McCutcheon.Table 11.1 indicates that almost 15 percent of Justice Roberts’ opinion was spent addressing and ultimately circumventing Buckley on the issue of aggregate limits. He wrote, “Although Buckley provides some guidance, we think that its ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here.”6 This was a classic example of the Conservative justices selectively following precedent when it served their agenda and ignoring it when it did not.
Table 11.1 Justice Roberts’ Plurality Opinion, McCutcheon v. FEC (2014)
|
Content |
Number of lines |
Percentage of opinion |
|
Buckley v. Valeo (1976) |
54 |
14.56 |
|
Criticism of dissent |
34 |
9.16 |
|
Hypotheticals |
33 |
8.89 |
|
District Court’s hypothetical |
26 |
7.01 |
|
FECA (1971) amended through the BCRA (2002) |
21 |
5.66 |
|
The government has alternatives to aggregate limits (w/o citation) |
21 |
5.66 |
|
Most donation recipients do not regift donations to candidates (w/o citation) |
18 |
4.85 |
|
The government has alternatives to aggregate limits (with citation) |
17 |
4.58 |
|
FECA amendments (1974) and (1976) |
15 |
4.04 |
|
Government’s arguments |
10 |
2.70 |
|
Facts of the case |
8 |
2.16 |
|
The aggregate limit is not narrowly tailored(w/o citation) |
8 |
2.16 |
|
Granting access to donors is not corruption(w/o citation) |
7 |
1.89 |
|
District Court’s ruling for the government |
7 |
1.89 |
|
The government’s regulations must target quid pro quo corruption (with citation) |
7 |
1.89 |
Notes: N = 371. This table presents data for content that appeared at least seven times in the opinion.
Source: Table created by author based on data from McCutcheon v. FEC, 572 U.S. 185 (2014).
The plurality in McCutcheon rejected the finding from Buckley that aggregate limits were a “modest restraint upon protected political activity.”7 The aggregate limits violated the First Amendment by limiting the number of candidates a donor could contribute to, and thus, limited their right to political speech.8 Justice Roberts declared, “The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”9
The problem is that this rationale ignored the entire distinction the Buckley Court made between contributions and expenditures. There was nothing preventing wealthy donors from spending as much money as they wanted on as many candidates as they wanted under the First Amendment protection carved out in Buckley for expenditures. However, the Buckley Court gave Congress much wider latitude when it came to restrictions on contributions because of the higher likelihood of quid pro quo corruption. That is, a donor’s contributions were not afforded the same First Amendment protection as expenditures. Yet, the plurality in McCutcheon blurred this distinction by giving contributions the same First Amendment protection as expenditures, thereby nullifying the distinction established in Buckley.
After wiping out the distinction between contributions and expenditures, the plurality moved on to the governmental interests asserted in the case. The justices were only willing to accept one legitimate interest for campaign finance restrictions—preventing quid pro quo corruption. Importantly, they created a line between quid pro quo arrangements and general influence. Simply garnering influence over a political officeholder did not amount to quid pro quo corruption. There had to be an agreement between the donor and the candidate to act in a certain way in exchange for a contribution. By applying such a narrow interpretation, the Conservative justices once again hamstrung Congress’ ability to fight political corruption as it had done in previous campaign finance cases.
The most perplexing part of the opinion involved a lengthy discussion, with hypotheticals, about whether Congress’ circumvention argument was plausible. A total of 8.9 percent of the opinion was spent discussing a hypothetical regarding the possibility of circumventing the base limits. The plurality found it highly unlikely that a donor could accomplish this by donating to multiple PACs, that would in turn support one candidate. Since PACs could only donate $2,600 to a candidate, each contribution was diluted to a small fraction depending on the number of donors to the PAC. For example, if there were ten donors, each would be contributing only $260 to the candidate. Even if the donor somehow managed to give to 100 different PACs, it would still only amount to $26,000 total. Furthermore, contrary to the government’s assertion, the regifting of donations from PACs to candidates was not very common. According to the plurality, it made much more sense for a donor to make an unlimited amount of independent expenditures to support the candidate, rather than pursue a circumvention scheme.
After analyzing its own hypothetical, the plurality addressed hypotheticals from the District Court and the dissent. Approximately 7 percent of the opinion was dedicated to criticizing the District Court’s hypotheticals, and another 9.2 percent to criticizing the dissent. Rather than deferring to Congress’ judgment on a matter of policy, the Conservative justices engaged in an irrelevant battle of hypotheticals. All of this amounted to extra-judicial analysis beyond the scope of the court’s mandate. The only thing that mattered was Congress’ determination that aggregate limits aided in preventing corruption.
Nevertheless, the plurality’s policy analysis didn’t end there. Justice Roberts’ opinion veered off the rails even further. The last part of the opinion discussed alternatives Congress could have adopted in place of the aggregate limits. This section amounted to 10.2 percent of the opinion. Justice Roberts wrote, “We do not mean to opine on the validity of any particular proposal. The point is that there are numerous alternative approaches available to Congress to prevent circumvention of the base limits.”10 In reality, opining on the validity of particular proposals was exactly what the court did, and it is unclear how this discussion related to the constitutionality of the law.
This case was about Congress’ authority to prevent political corruption. According to the dissent, corruption occurs when the public is unable to communicate its interests to its elected representatives. In this way, corruption is a direct attack on the First Amendment. Writing for the dissent, Justice Breyer said, “Corruption breaks the constitutionally necessary ‘chain of communication’ between the people and their representatives” because the influence of a few large donations will drown out the public’s voice.11 The result is elected representatives who protect the interests of the few at the expense of the many. Even the appearance of corruption is insidious because “a cynical public can lose interest in political participation altogether.”12
The court’s prior decisions were consistent with this belief. Justice Breyer considered the Buckley opinion to be controlling in this case. As already stated, Buckley upheld the constitutionality of imposing overall limits on the amount a single person could contribute to federal candidates, parties, or committees. The court had previously recognized the importance of preventing donors from circumventing the contribution limits by donating potentially millions to parties and committees who would ultimately funnel the money to a single candidate.
In Federal Election Commission v. Beaumont (2003), the court upheld a ban on direct contributions from corporations as a way of limiting the amount of undue influence over officeholders, and not just as a preventative measure against quid pro quo agreements.13 In Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001), the court upheld limits on coordinated expenditures between parties and candidates in order to stop corruption and the appearance of corruption,14 and in Nixon v. Shrink Missouri Government PAC (2000), the court upheld limits on contributions to state political candidates for the explicit reason of preventing politicians from being too heavily influenced by wealthy donors, and not just to prevent bribery.15 Finally, in McConnell v. FEC (2003) the court upheld limits on soft money contributions to political parties under a First Amendment argument that these contributions grant privileged access to wealthy donors that is unavailable to the public.16 The record in McConnell detailed the “web of relationships and understandings among parties, candidates, and large donors that underlies privileged access and influence.”17 The record did not focus on a single instance of bribery between a candidate and a donor.
In the absence of aggregate contribution limits, the dissent insisted that wealthy donors would find ways to channel millions of dollars to parties and individual candidates. For example, a donor could give $20,000 to a state party committee during an election cycle, and each major party had about fifty of these committees. As such, a donor could give approximately $1.2 million to a political party. Under the aggregate limits, the most a donor could give was $74,600 to a party over a two-year election cycle. The party would then be forced to allocate this money to tightly contested races.
Justice Breyer highlighted an even more serious problem with not having aggregate limits. A donor could give $5,200 to an individual candidate over a two-year election cycle. Since there are 435 candidates running for a House seat and 33 candidates running for a Senate seat, there is the potential for approximately $2.4 million in donations. Add that to the $1.2 million in donations to the party, and the donor could give a total of $3.6 million in donations to support a party and its candidates. Without aggregate limits, the law permitted this donor to write a single check for $3.6 million to a joint party committee (consisting of the party’s state and national committees). The joint party committee would then allocate the money to candidates in compliance with federal contribution limits. Every member of the joint party committee could write a check to an individual candidate. Through this circumvention process, millions of dollars of the donor’s money would be redirected to a single candidate, and the candidate would know where the money came from.
Not surprisingly, after this decision, there was a substantial increase in the number of joint fundraising committees, leadership PACs, and multicandidate PACs.18 Along with Citizens United, the McCutcheon decision “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”19
NOTES
1. Buckley v. Valeo, 424 U.S. 1 (1976).
2. McCutcheon v. FEC, 572 U.S. 185, 192 (2014).
3. Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431–457.
4. Bipartisan Campaign Reform Act of 2002, 116 Stat. 81.
5. Buckley, 424 U.S. at 38.
6. McCutcheon, 572 U.S. at 200.
7. Id. at 204.
8. The aggregate limits prevented donors from contributing to more than nine candidates if the maximum $5,200 was donated to each candidate.
9. McCutcheon, 572 U.S. at 200.
10. Id. at 223.
11. Id. at 237.
12. Id. at 238.
13. FEC v. Beaumont, 539 U.S. 146 (2003).
14. FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001).
15. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000).
16. McConnell v. FEC, 540 U.S. 93 (2003).
17. McCutcheon, 572 U.S. at 241.
18. Id. at 256.
19. Id. at 233.