Much Ado About McCutcheon

By Associate Clinical Professor Jessica Levinson

This piece appears in Pacific Standard.

Shaun McCutcheon wants to make political donations to federal candidates. Allow me to clarify; McCutcheon wants to make a LOT of political donations to federal candidates. The Republican National Committee, among others, wants him to be able to do so. So what's the problem?

Currently, McCutcheon can give $2,600 per election directly to a federal candidate, a total of $48,600 per election to all federal candidates, and $74,600 per election to federal political party committees and political action committees, or PACs, that give money to federal candidates. Put another away, McCutcheon (and other individuals) are subject to a $123,200 per election aggregate contribution limit with respect to candidates, political parties, and PACs. McCutcheon, a general contractor living in Alabama, would like to change that. The result is the latest and greatest campaign finance question to hit the high court since Citizens United.

In the early 1970s, in the wake of the Watergate scandals that lead to the resignation of President Nixon, Congress implemented the nation's first comprehensive campaign finance law. The law limited how much could be given to and spent by candidates, how much could be spent by independent groups and organizations, required that certain donations and expenditures be disclosed to the public, and created a system of public campaign financing for presidential candidates.

In 1976, in a decision that remains the bedrock of campaign finance law, Buckley v. Valeo, the U.S. Supreme Court essentially accepted half of Congress' attempt to regulate money in politics. The court upheld limits on contributions, disclosure provisions and the public financing program. However, the court struck down limits on spending by candidates and independent organizations. In the court's patchwork opinion it upheld the limits on the total amount of contributions that donors could give to candidates, political party, and other political committees, finding that those limits were a way to prevent the evasion of the direct limits on contributions from individuals to candidates. The court's analysis is less than satisfying on this point. In the almost 40 years since that decision much has changed regarding campaign finance laws. Money now flows relatively freely, and in some cases in undisclosed amounts, through our political system. But the aggregate limits on contributions have stood.

Now the Supreme Court appears poised to change that and the only question for McCutcheon is how big his likely win will be. In order to determine the size and scope of McCutcheon's potential victory, we need to look at the current state of the law.

Back in 1976 the court applied one test to determine if contribution limits were constitutional, and another, more stringent, test to determine if expenditure limits were constitutional. First off, justices found that limits on the ability to give political donations present only a marginal restriction on First Amendment rights. The test to determine whether those limits are constitutional requires two steps. First, the restriction must serve a sufficient governmental interest, such as preventing corruption or the appearance of corruption, in order to justify the burden on speech and associational rightsSecond, the law must be well tailored to serve that goal (specifically, according to the court the limits must be "closely drawn.")

But what about expenditure limits? The court also held that when it comes to limits on spending, the applicable test is more stringent because those limits present a severe, rather than merely a marginal, restriction on First Amendment rights. So in the case of spending limits the government must show that its interest in implementing the restriction is compelling (as opposed to sufficiently important) and that the restriction is narrowly tailored to serve that interest (as opposed to being closely drawn to serve that purpose).

These court-created tests, and the less-than-clear terms like "closely drawn" and "narrowly tailored," may sound like overly formal hair splitting. And it some ways they are. But whether and how we can limit the influence of money in our electoral and political systems hangs on that hair splitting. The court has long held that contribution limits can be upheld because they help to reduce corruption or the appearance of corruption. But what exactly is the court's definition of corruption? Well, it has varied with almost every new Supreme Court decision in this area of the law, including the now-famous 2010 Citizens United decision. One of the main reasons that McCutcheon's argument has legs is that ever since Citizens United the court has defined corruption very narrowly as quid pro quo, which is Latin for "this for that." A broader definition of corruption could include concepts like undue influence and preferential access. The narrower the definition of corruption, the less likely a court is to find that a restriction serves to prevent it. McCutcheon argues, in a nutshell, that the government lacks a sufficient interest when it comes to aggregate contribution limits because in a world of narrowly defined corruption, it's not there. And if that's the case, McCutcheon is arguing that the court was wrong in Buckley when it upheld the limit on aggregate contribution limits.

McCutcheon also argues that the court should apply the second test, the one that is more difficult to satisfy, to the aggregate contribution limits.

The primary reason that McCutcheon's argument may likely carry the day is that five of the nine justices on the Supreme Court are, to varying degrees, hostile to campaign finance legislation. In Citizens United, based on a 5-4 opinion, the court struck down a restriction on corporate electoral spending, overturning previous cases holding that it is permissible to treat corporations as different from people when it comes to spending money to support or oppose federal candidates.

Now, the court may overturn our long-held understanding that it makes sense to limit the total amount of money that any one individual can give either directly to candidates or to committees which give to candidates.

While critics may argue that there is little point it maintaining an aggregate contribution limit (and even individual contribution limits) when individuals and entities can give and spend unlimited amounts on independent expenditures (those expenditures not coordinated with candidate campaigns), there may still be a difference between giving money directly to candidates or committees who give to candidates and giving to other groups.

The breadth of McCutcheon's likely victory will determine whether individual contribution limits across the country are called into question. At that point the court would have dismantled the majority of the campaign finance restrictions implemented in the wake of Watergate. We would be in an era of restricting the flow of money in politics by disclosing it, but not by limiting the amount given and spent.