McCutcheon v. FEC

By Tom Watts

This morning, the Supreme Court decided McCutcheon v. FEC, which struck down aggregate contribution limits in campaign finance laws (laws that limit the total amount an individual can give to all campaigns put together). This decision continues the trend of striking down campaign finance laws, a trend made famous in Citizens United v. FEC; many are already comparing McCutcheon to Citizens United (such as Salon and the National Journal). Three points are immediately notable about the impact of McCutcheon on the future of campaign finance law.

First, while Citizens United denied that campaign finance laws could be justified by several specified interests (such as distorting the public discourse with large amounts of corporate money) and allowed the justification of preventing quid pro quo corruption, it did not explicitly say that preventing quid pro quo corruption was the only possible interest. In principle, there might have been some other justification that the government simply had not yet put forward. McCutcheon eliminates this possibility: “Any regulation must . . . target what we have called ‘quid pro quo’ corruption or its appearance.” It concedes, “Many people might find those [other] objectives attractive,” but asserts that just as the First Amendment protects other “repugnant” things, such as Nazi parades, it also must protect money in politics. The obvious difference, though, is that a restriction on Nazi parades is a restriction on the content of the speech; these restrictions on money in politics are regulation of the process (akin to a restriction on parades in general).

Second, as the dissent points out, the Court “substitutes judges’ understandings of how the political process works for the understanding of Congress.” In campaign finance, this is a problem. Politicians know the effects of campaign finance; there are few topics in which they are more expert. Judges who have never held elected office — and it hardly seems a mere coincidence that the campaign finance revolution in the Court began with Davis v. FEC in 2008 right after Sandra Day O’Connor, the last Supreme Court Justice with experience as an elected official, stepped down — are not. Justice O’Connor, who served in a state legislature, would have known that the effects of today’s decision will be felt primarily in the states: in principle (and perhaps in practice), a single person, or small group of people, might become kingmaker, not just for a handful of important national offices, but for every major office in the country — federal, state, and local. If Congress wanted to prevent this, is the Supreme Court well-positioned to say that Congress was wrong?

Third, the Court somewhat ominously notes, “This case does not involve any challenge to the base limits, which we have previously upheld [in Buckley v. Valeo] as serving the permissible objective of combatting corruption.” The base limits are the limits on direct contributions to individual candidates; if they were struck down, campaign finance limits would be effectively gone. Justice Thomas, in concurrence, observes tension between McCutcheon and Buckley (and says he would overrule Buckley). In a future case, might the rest of the conservative majority agree? It seems possible; the Court in this case already overruled a paragraph of Buckley (which upheld the aggregate limits that the Court today struck down). The rest of Buckley may be at risk, too, and, with it, virtually all that remains of campaign finance law.

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