Daniel Tokaji is the Robert M. Duncan/Jones Day Designated Professor of Law
in the Moritz College of Law and is an expert on election law.
What’s the issue in McCutcheon v. Federal Election Commission now before the U.S. Supreme Court?
McCutcheon is the latest in a long string of cases challenging the constitutionality of campaign finance regulations. Specifically at issue in McCutcheon are the aggregate contribution limits for federal elections. The aggregate contribution limits restrict the total amount that a person can contribute to federal election campaigns, political party committees and other political committees.
Some basic information on current campaign finance laws may be helpful to understand this case. Currently, there is a $2,600 limit on individual contributions to candidates for each election. So if I want to support a candidate running for the US House of Representatives in 2014, I can give her campaign committee a total of $5,200 in that election cycle — $2,600 for her primary campaign and another $2,600 for the general election campaign. There also are limits on the amounts that may be given to political party committees and other committees involved in federal election campaigns. For example, an individual is limited to contributing $32,400 to a national party committee per calendar year.
The McCutcheon case doesn’t challenge these limits. Instead, it challenges the aggregate contribution limits, which restrict the total amount that a person may give to all candidates and political committees. Currently, the aggregate contribution limit — the most than a person may contribute to all federal candidates, party committees and other political committees — is $123,200 in each election cycle. There also are aggregate limits of $48,600 in contributions to all federal candidates and $74,600 to all party committees and political action committees. Shaun McCutcheon was on the verge of exceeding the aggregate limits in 2011-12 but wanted to give more. He argues that the aggregate limits violate his First Amendment rights.
Without aggregate limits, it would be possible for wealthy individuals to make millions of dollars in campaign contributions every election cycle. Such limits have been in place for a long time. The Federal Election Campaign Act (FECA) Amendments of 1974 contained similar contribution limits. In Buckley v. Valeo (1976), the Supreme Court upheld the aggregate limits, as well as individual limits, against a First Amendment challenge. The Buckley court based its decision on the interest in preventing corruption and the appearance of corruption. The basic idea is that contributions could lead to quid pro quo corruption — the exchange of cash for political favors — or the public perception of such corruption. At the same time, Buckley struck down limits on individual expenditures, the amount that an individual may spend directly in support of federal candidates.
Under the regime created by FECA and Buckley, there’s a limit on how much an individual may contribute to candidates but no limit on expenditures by individuals or candidates. This creates a strong incentive for candidates to get as many contributions as they can, so that they aren’t outspent by their opponents. This system largely accounts for why political candidates spend so much of their time raising money. Congress retained this basic framework when it amended FECA again, through the Bipartisan Campaign Reform Act of 2002 (BCRA), which added restrictions on corporate and union-funded “issue ads” as well as a prohibition on previously unregulated “soft money” raised by parties.
How is McCutcheon related to Citizens United v. Federal Election Commission (2010)?
There’s probably no Supreme Court case in the last decade to have received more attention than Citizens United v. FEC. While there are some similarities between Citizens United and McCutcheon, there also are significant differences.
At issue in Citizens United was the prohibition on corporations and unions making expenditures from their treasuries in connection with federal campaigns. Some version of this ban on corporate spending had been in effect for decades. The ban was expanded to certain issue ads — those mentioning a specific candidate within 60 days of a general election or 30 days of a primary — through BCRA.
Although the court had upheld bans on corporate campaign spending in previous cases, it overruled those precedents in Citizens United. The court held that the First Amendment bars the government from limiting corporate political expenditures. Specifically, it concluded that the interest in preventing corruption wasn’t sufficient to justify a ban on corporate expenditures. The court also rejected the interest in equality, or leveling the playing field, as inconsistent with the First Amendment. But Citizens United didn’t strike down the longstanding ban on corporations and unions making contributions to federal candidates. That ban remains in place and has been upheld by lower courts since Citizens United.
Thus, under current law, corporations and unions can’t make contributions to federal candidates’ campaigns, but there is no limit on corporations, unions or individuals making direct expenditures in support of their preferred candidates. And due to a post-Citizens United case decided by the DC Circuit, Speechnow.org v. FEC, there are no limits on how much corporations and unions can give to outside groups — like so-called “SuperPACs” — that make expenditures in connection with federal election campaigns.
There are two important differences between Citizens United and McCutcheon. The first is that McCutcheon involves limits applicable to individuals, while Citizens United involved a ban on spending by corporations. The second difference is that McCutcheon involves limits on contributions, not expenditures. Since Buckley, the Supreme Court has consistently been more tolerant of contribution limits than expenditure limits.
What’s the impact of the Supreme Court’s decisions on our political system?
It’s no secret that the current Supreme Court is generally skeptical of campaign finance regulations. Even before Citizens United, the Roberts court had trimmed back on key portions of federal campaign finance law. And after Citizens United, the court struck down an Arizona public financing law, which sought to equalize the resources available to publicly financed candidates facing privately financed opponents.
There’s a vigorous debate among election law scholars over Citizens United and other recent cases. Libertarians generally cheer these decisions, reasoning that less government regulation of money in politics is better. Campaign finance reformers, on the other hand, are harshly critical of the Roberts court. They see Citizens United and other decisions as leading to a huge influx of mostly unregulated money in our political system. The net effect, reformers argue, is to give big corporations and wealthy individuals a much greater voice in our democracy than the rest of us.
However one feels about Citizens United, it’s questionable whether anyone would choose the system of campaign finance we have now. As a result of the Supreme Court’s distinction between contributions and expenditures, the amount that candidates and parties can raise from individuals is restricted. But there’s no limit on how much outside groups can spend or how much they can raise from corporations, unions and wealthy individuals. The net effect is to drive more and more money to outside groups — much of it “dark money” whose source is unknown — rather than candidates or parties. In short, the current system is one that virtually no one defends.
Libertarians will argue that the solution to this problem is to get rid of contribution limits, at least the aggregate limits. They argue that we’d be better off if the money currently going to outside groups were channeled toward candidates and political parties instead. At least then the candidates and parties would be accountable for how the money is spent. By contrast, reformers argue that lifting the aggregate contribution limits would open the floodgates even further to special interest money, which is already corrupting our political system.
If there’s one thing that we should all be able to agree on, it’s that the Supreme Court’s decisions in the area of campaign finance have had a major impact on our political system. We now have massive amounts being spent by outside groups, which are relatively unaccountable. Whatever the Supreme Court decides in McCutcheon, it’s likely to affect the flow of political money for years to come.