Supreme Court

SCOTUS Rules Campaign Finance Restriction Unconstitutional

Predictable parties cheer and condemn McCutcheon v. Federal Election Commission decision


Earlier today the Supreme Court ruled in a 5-4 ruling that limits on total campaign contributions to PACs, candidates, and political parties are unconstitutional

The case, McCutcheon v. Federal Election Commission, came about after wealthy Republican donor Shaun McCutcheon claimed that limits to campaign contributions infringed on his right to free speech, as Reason's Damon Root explained:

"Money in politics may at times seem repugnant to some," wrote Chief Justice John Roberts in his controlling opinion in McCutcheon v. Federal Election Commission, "but so too does much of what the First Amendment vigorously protects."

The case arose when Shaun McCutcheon, a wealthy donor to the Republican Party, challenged the aggregate contribution limits for violating his constitutional right to speak freely about politics. Today, the Supreme Court agreed with McCutcheon's main claims.

While "combatting corruption" is a permissible reason to regulate campaign spending, Chief Justice Roberts declared, "the aggregate limits do little, if anything, to address that concern, while seriously restricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment."

Politico notes that McCutcheon v. Federal Election Commission is the latest case to be decided by the Supreme Court that affects political campaign legislation:

It's the latest in a series of federal court rulings — most notably 2010's Citizens United decision — that are loosening up the rules on campaign contributions. Wednesday's ruling does not, however, strike down the court's landmark holding in 1976 Buckley v. Valeo that upheld most contribution limits to individual candidates and committees.

Analysis and Commentary

Richard L. Hasen, professor of law and political science at the University of California–Irvine School of Law, is not a fan of the decision:

…this is nevertheless a subtly awful decision. It is true that Roberts sidestepped today the question of whether to apply "strict scrutiny" of contribution limits in another case; he did not need to take that dramatic (and high-profile) step to do a whole lot of damage to campaign finance law. Instead, he did three things which now set the course toward even more campaign finance challenges under the First Amendment and more deregulation.

Hasen explains these "three things" as being the following:

First, as I feared, he has incorporated the very stingy definition of corruption used in Citizens United spending limit cases into the contribution area. This matters because the court has recognized only the interest in preventing corruption and the appearance of corruption as a permissible reason for upholding campaign finance limits. (Equality, for example, is a forbidden interest under the First Amendment).

Second, Roberts makes that laxer level of scrutiny applicable to review of contribution limits somewhat stricter. Buckley established that contribution limits get judged under something called "exacting scrutiny," which in practice in the past has led the court to uphold a large number of contribution limits based upon very little evidence of corruption. Today Roberts tightens that standard, requiring more evidence (to be judged against the new strict "corruption" definition).

Third and most dramatically, the court seems to open the door for a future challenge to what remains of the McCain-Feingold law: the ban on large, "soft money" contributions collected by political parties. These contributions were banned because it had become clear that political parties were becoming conduits for access between elected officials and big donors. Today Roberts rejects ingratiation and access as a problem, and says that this funnel of significant money to parties could serve the purpose of strengthening political parties and thus be a good thing.

The Cato Institute's Ilya Shapiro is a fan of the ruling:

Despite the 5-4 split among the justices, McCutcheon is an easy case if you apply well-settled law: Restrictions on the total amount an individual may donate to candidates and party committees—as opposed to how much he can donate to any one candidate—violate the First Amendment because they do not prevent quid pro quo corruption or the appearance thereof. That corruption-prevention rationale is the only government interest that the Supreme Court accepts as a valid one for restricting political-campaign activities. As Chief Justice Roberts wrote for the majority (and it is a majority because Justice Thomas concurs in the judgment): "Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition."

Shapiro concludes that the Supreme Court should have gone further:

As Cato argued in its amicus brief, in a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office. The Supreme Court today correctly struck down the biennial campaign contribution limits and gave those who contribute money to candidates and parties as much freedom as those who spend independently to promote campaigns and causes. But it should have gone further.

Damon Root wrote about the clash of visions on display in McCutcheon v. Federal Election Commission:

The battle over campaign finance regulation features a clash of visions. One side holds that such restrictions clearly violate the First Amendment by limiting the right to speak freely about politics. The other holds that the restrictions are necessary to level the playing field and promote democracy. These competing views were both well represented today in the Supreme Court's ruling on aggregate spending limits in McCutcheon v. Federal Election Commission.

Politico has collected tweets from Democratic lawmakers reacting to the ruling. They're not happy.

The Wall Street Journal has put together a collection of reactions from legal experts, including the following:

Floyd Abrams, partner at Cahill, Gordon & Reindel LLP:

I don't think it's surprising. The notion that you can impose contribution limits with respect to a certain number of candidates but no more simply doesn't make a whole lot of sense. [The challenge represented] a raid against the strong First Amendment interests [of voters], and the court had what I believe was little option but to strike the statute down.

The majority's definition of corruption focuses on a quid-pro-quo arrangement: money for votes on legislation. [Defining] corruption is always difficult, but I agree with the [plurality's] decision to deliberately choose a narrow definition so as to interfere less with the very strong First Amendment right to participate within the political process.

President of Public Citizen Robert Weissman: 

This is a devastating blow to our democratic system, and will go down along with Citizens United as one of the worst in the history of Supreme court jurisprudence. It's really a decision for plutocrat rights. It means a person can write a single check for $5.9 million. [There are] only a few hundred people in the country who might plausibly do that and they're going to expect something in return.

President of Common Cause Miles Rapoport:

Today's decision . . . is Citizens United round two, further opening the floodgates for the nation's wealthiest few to drown out the voices of the rest of us . . . The court has reversed nearly 40 years of its own precedents, laid out a welcome mat for corruption, and turned its back on the lessons learned from the Watergate scandal. This decision once again demonstrates the court majority's ignorance of the real world of American politics, the one in which big money buys big returns.

Former Federal Election Commissioner Bradley Smith:

I think that there's an obvious common sense to the court's opinion. If 18 individual $2,600 dollar contributions don't have a corrupting effect, it's hard to see how the 19th one will.  The dissent tries to get around this by putting out wildly misleading hypotheticals that do little than to underscore, once again, how little Justice Breyer really understands about campaign finance.

Read the court's opinion below:

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  1. “because it had become clear that political parties were becoming conduits for access between elected officials and big donors” – Richard L. Hasen, professor of law and political science at the University of California?Irvine School of Law.

    Were becoming conduits? Try have become.

  2. Equality, for example, is a forbidden interest under the First Amendment

    Why would equality [of outcome or contribution] have anything to do with it? Equality of opportunity – all can contribute – is all that matters.

    The First doesn’t say that all speech must be at the same volume or frequency or time of day or whatever. It says “Congress shall make NO LAW … abridging the freedom of speech ..”

  3. The most significant aspect of the ruling is not mentioned here. The $2600 limit for individuals per candidate per election is still in place. Justice Thomas had argued that that should be stricken as well.

    But Justice Roberts insisted on keeping it, so it stayed. Who benefits? The grassroots is held in check, while large donors are now unleashed. Monied people have spent most of their lives studying their business and are philosophically and political-strategically ignorant. They need others to do their thinking for them in these areas. The Straussians are more than happy to do their thinking for them, and in fact, insist on it. The Straussians control their ears. They are zombie whisperers, and the large donors do what they are instructed. Their money will go to the Straussians’ candidates like Ben Sasse, Tom Cotton, Lindsay Graham, Kelly Ayotte, John McCain, Paul Ryan, Eric Cantor, etc.

    Recall that Justice Robert suddenly reversed his opinion on Obamacare around May 2012 to support it. Who might have instructed him to do that? Who on the “Right” benefited from the survival Obamacare? Not the grassroots, who have to deal with the consequences of it.

    That’s two for Roberts. Once is happenstance. Twice is coincidence. Three times, it’s enemy action.

  4. FYI: Kevin Williamson, pretend libertarian but really a Straussian, against the people and for Paul Ryan and his statist budget:…..williamson

  5. This is a devastating blow to our democratic system, and will go down along with Citizens United as one of the worst in the history of Supreme court jurisprudence. It’s really a decision for plutocrat rights. It means a person can write a single check for $5.9 million. [There are] only a few hundred people in the country who might plausibly do that and they’re going to expect something in return.

    1. We need more such bows against a system that has become dempcratic despite the wishes and best efforts of the Founding Fathers, who were students of history and understood the dangers of Democracy in a way that modern fools do not.

    2. I don’t see how the decision means someone can write a single check for 5.9 million, I thought it meant that one person could write, say, 5.9 million checks for one dollar. And even if I misread the opinion, many of the few who can write that one big check are donors to the liberals. Think George Soros. I’m surprised his entire answer didn’t consist of “Koch Brothers! Koch Brothers!”

    3. First time I have posted a comment using Reasonable. I like it.

    1. omg, also “democratic” not “dempcratic”, although a government by Jack Dempsey would be unfortunate.

  6. derp “blow” not “bow”

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