ALGOP.orgALGOP.orgIn the 1976 case Buckley v. Valeo, the Supreme Court upheld limits on contributions to political candidates, saying they did not impinge on First Amendment rights as much as limits on spending by candidates, which it overturned. Yesterday the Court agreed to hear a case, McCutcheon v. FEC, that may give it an opportunity to revisit that questionable distinction, which has become increasingly difficult to defend in light of decisions rejecting other campaign finance regulations, such as the restrictions on independent spending by unions and corporations that the Court overturned in the 2010 case Citizens United v. FEC.

The lead plaintiff in the new case, Shaun McCutcheon, is Republican activist in Alabama who would like to donate more than the aggregate federal limits on contributions, currently $46,200 over two years for candidates or their authorized committees and $70,800 for other recipients (such as party committees). Combined with the limits on contributions to particular candidates ($2,500) or committees ($30,800), the overall ceilings mean a donor can give the maximum contribution to no more than 18 federal candidates and no more than two national committees. McKutcheon argues that the $46,200 aggregate limit on contributions to candidates is "unsupported by any cognizable government any level of review," while the $70,800 aggregate limit on other contributions is unconstitutionally low. Last September a special three-judge panel in Washington, D.C., disagreed, saying the aggregate limits are justified as safeguards aimed at preventing evasion of the limits on contributions to any one candidate or committee:

Eliminating the aggregate limits means an individual might, for example, give half a million dollars in a single check to a joint fundraising committee comprising a party’s presidential candidate, the party’s national party committee, and most of the party’s state party committees. After the fundraiser, the committees are required to divvy the contributions to ensure that no committee receives more than its permitted share, but because party committees may transfer unlimited amounts of money to other party committees of the same party, the half-a-million-dollar contribution might nevertheless find its way to a single committee’s coffers. That committee, in turn, might use the money for coordinated expenditures, which have no "significant functional difference" from the party’s direct candidate contributions. The candidate who knows the coordinated expenditure funding derives from that single large check at the joint fundraising event will know precisely where to lay the wreath of gratitude.

This anti-evasion rationale, of course, hinges on the legitimacy of the per-candidate and per-committee limits, which McKutcheon is not challenging. But note that a similar argument could be made regarding independent spending, which under Citizens United cannot be restricted based on concerns about corruption. It is hard to believe that a candidate's gratitude to people who help him get elected hinges on the presence or absence of explicit coordination. But if it doesn't, what remains of the justification for restrictions on direct contributions?

Buckley minimized the First Amendment significance of political contributions by treating them mainly as acts of affiliation, which are constitutionally protected under freedom of association but do not depend on the amount of money involved. To the extent that a contribution amounts to speech, the Court said, it is an "undifferentiated, symbolic act of communicating," helping to fund "speech by someone other than the contributor."

That description of contributions sat uneasily with the Court's view of spending. Since "virtually every means of communicating ideas in today's mass society requires the expenditure of money,” the Court reasoned, "a restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Restrictions on contributions have the same effect, since they limit the amount a person or group can raise, which in turn limits how much they can spend. Maintaining Buckley's distinction between spending and contributions is like saying that a law limiting how much newspapers can spend violates freedom of the press while a law limiting how much they can collect from each subscriber and advertiser does not.

The Court implicitly acknowledged the impact of contribution restrictions on speech in Randall v. Sorrell, a 2006 decision that rejected Vermont's limits on political donations as unconstitutionally low. And after the Court overturned limits on independent spending in Citizens United, the U.S. Court of Appeals for the D.C. Circuit logically concluded that limits on contributions to groups that engage in independent spending are unconstitutional as well. As the judges who heard McKutcheon's challenge conceded, "the constitutional line between political speech and political contributions grows increasingly difficult to discern."