New Developments in the Fight for Campaign Finance Reform

By: John Spellman

On October 8, 2013 the Supreme Court heard oral arguments for the case of McCutcheon v. Federal Election Commission; the latest challenge to campaign finance reform.  The Court must decide whether caps on individual contributions to candidates and political parties violate the First Amendment.  Justice Ginsburg posited that the individual contribution limits promote “democratic participation” by increasing the impact of individual contributions from the average voter.  Conversely, Justice Alito was skeptical of the need for caps on individual campaign contributions to prevent corruption, saying “[w]hat I see are wild hypotheticals that are not obviously plausible.”  While a decision is not expected for weeks, the conflicting opinions of Justice Ginsburg and Alito demonstrate the deep divide regarding campaign finance reform in the United States.

The Plaintiff, Shaun McCutcheon is a conservative businessman from Alabama who has provided substantial contributions to Republican candidates, and claims he would have contributed more, if not for the cap on individual donations.  McCutcheon is challenging the aggregate cap limits on political contributions, and claims that these caps “simply seek to prevent individuals from engaging in First Amendment activities.”  However, Solicitor General Donald Verrilli argues that these caps are necessary to prevent violations of the base limits on contributions.

The first campaign finance legislation was introduced in 1867 and prohibited Federal officers from requesting contributions from Navy Yard Workers.  While there were some attempts to control campaign spending in the hundred plus years following the first campaign finance law, it was not until 1974 that Congress felt a need to create the Federal Election Commission to regulate compliance with campaign finance laws.  That same year, Congress enacted strict limits on campaign spending and contributions that apply to all candidates seeking a federal office.  In 1976, following constitutional challenges, Congress repealed some of the expenditure limits from the 1974 legislation.  They also placed strict limitations on the ability for a political action committee, or “PAC”, to solicit corporate contributions, specifying which employees of a corporation could be solicited and how solicitations would be conducted.  In addition, the 1976 legislation placed a cap on PAC campaign contributions.  Most recently, in Citizens United v. FEC, the Supreme Court held corporations and unions have a First Amendment right to unlimited contributions supporting independent issue advertisements during an election.

In the wake of Citizens United, it will be interesting to see whether the Supreme Court in McCutcheon upholds the similar restrictions on individual contributions. For the 2013-2014 election cycle, individuals can give a total of $123,200 to candidates, national party committees, and certain political committees.  This total includes a $48,600 cap on donations to candidates, with a $2,600 limit on contributions to individual candidates.

From McCutcheon’s perspective, the $48,600 cap on aggregate contributions restricts his ability to support Republican candidates nationwide.  As this is his money, he feels that he should be able to do as he pleases with it.  Why should McCutcheon face restrictions that corporations are seemingly not subjected to under the ruling of Citizens United?

The FEC believes that the caps on aggregate contributions help to avoid corruption in the contribution process. In wake of the Watergate scandal, the FEC and the United States Congress have continually worked to closely regulate individual contributions.  The Court in Buckley v. Valeo decided that some limits on individual contributions were necessary, because individual contributions, unlike expenditures, have a higher potential for corruption. Similarly, the Supreme Court has consistently held that independent spending is political speech protected by the First Amendment; however, it has also found that individual contributions should be capped in order to prevent corruption.

Should the Supreme Court decide to remove the aggregate cap from individual contributions to candidates and political organizations, there would be a dramatic change in the campaign funding process during an election cycle.  First, wealthy donors, who are capable of making large contributions, would have a greater influence on elections nationwide.  Hypothetically, this could lead to a donor in California having a substantial influence over an election in Texas simply because the donor is capable of making a contribution.  As suggested by Justice Ginsburg, this severely limits the impact of donations from average voters unable to make such sizable contributions.

Perhaps more concerning, is that the removal of aggregate contribution caps could dramatically increase the power and size of joint fundraising committees.  As suggested by Robert Barnes and Matea Gold of the Washington Post, such a ruling could lead to candidates’ fundraising committee joining forces with the a national party, like the DNC.

The future of the aggregate cap on individual contributions remains unclear. While liberal Justices favor the caps, the more conservative members of the Court seem inclined to side with McCutcheon.  Chief Justice Roberts indicated that he was “inclined to strike down the overall limits on contributions to several candidates, but not overall limits on contributions to several political committees.”

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