McCutcheon and the Ongoing Debate Over First Amendment Rights in Election Law

By: Savanna Shuntich

With all the drama of the 2012 election season, it seemed like the election to end all elections and it is hard to believe another round of national elections is less than nine months away. With the first primaries starting next month, it will not be long until the campaign season is in full swing. Central to the next round of federal elections will be the outcome of McCutcheon v. Federal Election Commission. McCutcheon was argued before the Supreme Court this past October and the Court’s decision could have dramatic effects on the political landscape and the way we think about First Amendment rights. The plaintiff in the case, Shawn McCutcheon, is a wealthy Alabama businessman and an active Republican donor. He is challenging the aggregate contribution limits imposed upon political donors by the Bipartisan Campaign Reform Act (BCRA).

According to current Federal Elections Committee (FEC) regulations under the BCRA, an individual may only donate $2,600 to a candidate each election and $48,600 total to all federal candidates in a two-year cycle. This means a donor cannot give to more than eighteen candidates if he or she gives the maximum amount permitted by law. Similar restrictions are placed on donations to party committees. If Mr. McCutcheon wants to give to national and state party committees he may only contribute $64,800 every two-year election cycle. For example, he could give the maximum amount to the Alabama Republican party and then be unable to contribute to the RNC. Mr. McCutcheon (and his co-plaintiff the Republican National Committee) is arguing that these limits are unconstitutional violations of his First Amendment rights.

The outcome of the case will most likely hinge upon the Supreme Court’s 1975 decision in Buckley v. Valeo. In Buckley, the plaintiff challenged amendments to the Federal Election Campaign Act (FECA). The Act set the original aggregate contribution limits in hopes of preventing wealthy donors from having too much influence over national elections. The Court acknowledged that aggregate contribution caps infringed upon the plaintiff’s First Amendment right to freedom of association, but that the need to keep corruption out of the electoral process outweighed those First Amendment concerns. The Court felt aggregate contribution limits, in particular, served to “prevent evasion of the . . . contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of non-earmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party.”

Like Mr. McCutcheon, I wonder exactly what these contribution limits have to do with preventing corruption. At the very least, the restrictions on how many candidates a single donor can give $2,600 to should be struck down. What is the difference between being able to give eighteen candidates $2,600 and forty candidates $2,600? In the grand scheme of things $2,600 is not a lot of money. Many candidates for the House of Representatives raise a few million dollars each electoral cycle, and their colleagues in senate races raise substantially more. I understand the government’s concern that individual donors might unduly influence the politicians they donate to but $2,600 is more an expression of support than a sum large enough to garner undue influence.

The case for keeping contribution limits to party committees is marginally stronger. Donors could their clout with party organizations and party leadership to get favors from individual elected officials. Someone who regularly writes a $48,000 check to every party committee around is potentially more influential than those who write smaller individual checks to each candidate, especially where the smaller and less well-funded party committees are concerned. But still, in the grand scheme of things $48,600 is not a lot of money.

At the risk of coming across as a maniacal Libertarian I think the court should strike down both the previously discussed aggregate contribution limits and all limits on contributions in general. In the wake of the Citizens United ruling, we began a national discussion about the proper role of money in politics and the First Amendment rights of would be donors. In Citizens, the Supreme Court held that regulations prohibiting corporations and nonprofits from making political expenditures were unconstitutional under the First Amendment. I think the Court should continue to liberalize the FEC’s donation rules in the name of allowing individuals to spend their money as they chose.

The real protections against corruption are the donation reporting requirements created by Federal Election Campaign Act and the ballot box. You can find out exactly who is contributing to your elected official because it is a matter of public record (and will probably be brought up by that person’s opponent). Further, if you feel that your representative is in the pocket of wealthy donors and not acting in the interest of his or her constituents, you are free to vote for someone else. I know this is a controversial view. Many fear that well-funded incumbents are unbeatable when backed by wealthy donors. However, I believe it is time we stopped imposing arbitrary limitations on donors, which set the cap too high for some and too low for others. Everyone should be permitted to contribute to party committees and candidates as they desire.

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