Let Money Talk

The Supreme Court should abandon the dubious distinction between campaign spending and campaign contributions.


If Congress tried to limit spending by newspapers, the courts would reject such meddling as a blatant violation of the First Amendment. Likewise if Congress tried to accomplish its goal indirectly by limiting the amount of money newspapers receive from advertisers.

Yet the same sort of distinction supposedly justifies federal limits on campaign contributions, the subject of a case the Supreme Court heard in October. McCutcheon v. FEC gives the Court an opportunity to reconsider an illogical constitutional line it drew nearly four decades ago.

Shaun McCutcheon, an Alabama businessman and Republican activist, argues that the overall limits on how much one person can give to candidates, parties, and political committees during an election cycle impinge on his First Amendment rights for no good reason. The current aggregate limit for donations to candidates, for example, is $48,600, which means McCutcheon can give the maximum legal contribution to no more than nine candidates.

If the risk of corruption from giving $5,200 to each of nine candidates is negligible, McCutcheon asks, why is giving the same amount to a 10th candidate intolerable? And if he has a First Amendment right to make those first nine donations, why not the 10th? It certainly seems arbitrary to say that at that point he is supporting too many candidates.

The Federal Election Commission says the aggregate limits are necessary to prevent evasion of the restrictions on individual contributions. If a donor can give the maximum contribution to an unlimited number of political committees, for example, those committees might pass the money on to a particular candidate, the upshot being that he receives more than $5,200 of the donor's money.

McCutcheon responds that such an arrangement would be illegal if it were binding on the committees (since donations funneled through an intermediary are legally the same as donations given directly to candidates) and ineffective if not. He does not take the additional step of arguing that the limits on individual donations are unconstitutional.

That task falls to the Cato Institute, which in a brief supporting McCutcheon urges the Supreme Court to abandon the dubious distinction it drew in Buckley v. Valeo, the 1976 ruling that rejected limits on campaign spending but upheld limits on campaign contributions. Since communicating a message requires money, the Court recognized, limits on spending amount to restrictions on speech.

The Court refused to acknowledge the obvious corollary: Restrictions on contributions amount to restrictions on spending. Or as Chief Justice Warren Burger put it in a partial concurrence, "contributions and expenditures are two sides of the same First Amendment coin."

Under current law, a wealthy man can spend as much money as he wants on his own political campaign or on independent messages advocating a candidate's election. But he can give that candidate's campaign no more than $5,200.

This puzzling restriction violates the First Amendment rights of the candidate as well as the donor. It rules out insurgent campaigns by challengers (such as Eugene McCarthy in 1968) who have not managed to build wide networks of donors but have attracted support from a few rich patrons. It thereby makes elections less competitive, contributing to alarmingly high re-election rates for members of Congress.

As Cato's brief notes, contribution limits hurt incumbents as well, forcing them to "spend an inordinate amount of time raising money" instead of doing their jobs. The problem is compounded by the failure to adequately adjust for inflation: Today the real value of the maximum candidate contribution is about half what it was when the limit was first imposed in 1974.

Public approval of Congress has seen a similarly precipitous decline during the same period. If limiting speech has reduced corruption, voters do not seem to have noticed.

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  1. It thereby makes elections less competitive, contributing to alarmingly high re-election rates for members of Congress.

    Duh. That's the point.

    1. It rules out insurgent campaigns by challengers (such as Eugene McCarthy in 1968)

      I can't figure out is Sullem is being sarcastic or if he really is so naive that he thinks these assholes will stop anything to ensure no one ever challenges them.

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  2. Merry Christmas and Happy Holidays to all.

    1. How dare you push your agenda here of all places!

    2. I'll see your Merry Christmas and raise you a Happy New Year!

  3. Should they remove these completely arbitrary limits? Of course they should.

    I'd love to see what would happen if they did make that decision, if only because the whining and gnashing of teeth by the left would make their reaction to Citizens United look tame.

  4. Just as long as the Right People (like Tom Steyer) can continue to preach the Gospel, and speak truth to the Man.

    "Doin' right ain't got no end."

  5. Joe Perry suggests that we Let The Music Do The Talkin'.

  6. I believe the law confuses the importance of two issues: 1) how much money is given; and 2) knowing the identity of who gives the money.

    I don't think there should be any real restrictions on #1. If a millionaire wants to give Candidate X a fortune, who are we to stop that (it's his/her money!)?

    That said, I believe it's in the public's interest to know WHO is giving the money to Candidate X; the millionaire should not be able to stay anonymous. If that millionaire is afraid of blowback, well, freedom does have consequences. And Candidate X will have to live with being known as the politician in the millionaire's back pocket.

    The system we have know is the worst of all worlds. Politicians rely upon (and work for) "bundlers" who accumulate massive amounts of capped donations but who only show up as donating the small max on the campaign disclosure filings while we allow unlimited sums of money to be funneled into "educational non-profits" that are clearly fronts for partisan organizations completely anonymously.

  7. Just make them all wear sponsor patches on their clothes like NASCAR and I have no problem.

    A little help with the national debt might be in order also. Congress could work out of the Amazon Government Building and the Prez in the Google White House. As long as there are no..no bid naming rights given.

    1. What would be more interesting would be to require the patch size relative to the overall 3rd party contributions. It would be hilarious (or not) to see the size of some of the patches. If a single patch gets larger than a grapefruit then they also have to have the word "Property of..." embroidered on the patch.

  8. Advertisers paying media, even to influence content is not the same as paying a government to govern according to certain influence. For me this is one of the difficult issues to follow in terms of pure libertarian principals because the path to oligarchy becomes much more accessible. It seems though that the amount of allowed contributions indeed needs to be adjusted. perhaps we would be surprised at the dynamic if we simply let the market play itself out.

    1. Or we could just define the functions of govt. in an objective manner (you know, in a Constitution), so we live by rule of law rather than the arbitrary, capricious rule of govt. agencies we are living under now.

      If the government and politicians didn't have so much power, there would be no incentive to bribe them.

  9. How does the author figure that, "Today the real value of the maximum candidate contribution is about half what it was when the limit was first imposed in 1974" when the money supply has been increased by about 1800% since the early 70s. Gold was $35 per ounce back then. Has there been an inflation adjustment for campaign contributions?

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  12. cycle impinge on his First Amendment rights for no good reason

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