JURIST Guest Columnist Richard Briffault of the Columbia Law School says that McCutcheon v. FEC could upend a central element of campaign finance doctrine but even if the court’s judgment is less radical than that, the erosion of restrictions on the electoral role of great private wealth will likely continue …

On October 8, 2013, the US Supreme Court heard oral argument in McCutcheon v. Federal Election Commission, in which a wealthy individual donor and the Republican National Committee (RNC) challenged the longstanding federal law placing an “aggregate” limit on the amount of money an individual can give to all federal candidates, political parties and political action committees (PACs) in an election cycle.

The case could upend a central element of campaign finance doctrine since the seminal Buckley v. Valeo decision in 1976—the distinctive and relatively deferential judicial treatment of restrictions on campaign contributions as opposed to campaign expenditures. Even if the court’s ultimate judgment is less radical than that, the erosion of restrictions on the electoral role of great private wealth will likely continue, if not accelerate. Whatever the result in McCutcheon, the future of campaign finance reform will require measures that “level up”—like public subsidies that match small donations—rather than “level down” restrictions that try to curb the ability of the very affluent to spend their money in elections.

Federal law restricts the amount of money an individual can donate to federal candidates. That limit, adjusted biennially for inflation, is currently $2,600 per election. With primaries and general elections treated as separate elections, the amount an individual can give to a federal candidate in an election cycle is capped at $5,200. Federal law also curbs the amount an individual can give to a national political party committee at an inflation-adjusted $32,400 per calendar year; and places a ceiling of $10,000 per calendar year on an individual’s contributions to state and local party committees and a $5,000 per calendar year limit on donations to a PAC. These limits are not being challenged in the McCutcheon litigation. But federal law also imposes inflation-adjusted “aggregate” caps: an individual donor may not give more than $123,200 during a biennial election cycle to all federal candidates and parties and PACs active in federal elections; and the law also sets sub-caps of a maximum of $48,600 in contributions to all federal candidates; a maximum of $48,600 to all PACs; and a maximum of $74,600 to all PACs and parties together.

The aggregate cap on donations to candidates meant that in 2012 plaintiff Shaun McCutcheon was unable to follow through on his plan of making a patriotic $1,776 donation to each of 27 candidates for Congress. Nor was he able to give as many donations to political party committees and PACs as he wanted because of the $74,600 limit. So, joined by the RNC, he challenged these restrictions as violative of the First Amendment.

Since Buckley, the Supreme Court has consistently taken a bifurcated approach to restrictions on campaign money. It has treated campaign expenditures—that is, money spent on activity intended to communicate with or mobilize voters—as the highest form of campaign speech, subjecting restrictions on expenditures to strict judicial scrutiny. As a result, limits on spending by candidates and by independent groups that support or oppose candidates have been invalidated. By contrast, contributions—that is, money given to a candidate, party or political committee—are, although protected by the First Amendment, less protected because in the court’s view they have less speech value than expenditures. Restrictions on contributions have been subject to the more deferential “exacting” review, and have been held to be justified by the important public interests in preventing corruption and the appearance of corruption. The court has consistently sustained dollar limits on contributions to candidates and committees that give to or collaborate with candidates, except when the limits were so low they were found to interfere with political competition.

Aggregate limits arguably do not directly address a corruption concern. If an individual can give $2,600 to one candidate without raising a danger of corruption, why can’t she give $2,600 to each of 435 candidates for the House of Representatives, and 34 candidates for the Senate? Buckley upheld the predecessor to the current aggregate limits, although that law simply had one overall aggregate limit and not the sub-limits for candidates and non-candidate committees which were added when the aggregate limit was raised in 2002. The court found “this quite modest restriction upon protected political activity serves to prevent evasion of the [individual] contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of un-earmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party.”

McCutcheon raises two issues. First, the RNC contends that contribution limits, like expenditure limits, should be subject to strict judicial scrutiny as contributions are both a form of speech for donors and essential for candidates, parties and other political groups to finance their constitutionally protected expenditures. Justice Scalia and Justice Thomas have already embraced that position in prior opinions. If the court were to adopt this position it would be its most significant departure from Buckley in nearly four decades. That would probably be the end of federal, state, and local contribution limits. Even if the court were to conclude that preventing corruption is a compelling governmental interest, it could be argued—as Justice Scalia and Justice Thomas have contended—that dollar limits are not narrowly tailored to that anti-corruption end because bribery and disclosure laws could do the job with less of a burden on speech. In any event, governments would be held to a far more demanding standard of proving that a particular dollar limit, and not a higher one, is necessary to prevent corruption.

Second, even if the court leaves Buckley’s more deferential standard for contribution restrictions alone, it could decide the aggregate limits are not justified as an anti-circumvention measure. That would be a less drastic, but still significant, departure from precedent. In many cases, the court has determined that preventing evasion of the limits on contributions to candidates is a sound constitutional justification for other limits, and it has deferred to Congress’s judgment concerning what campaign finance practices provide opportunities for evasion of the basic limits. In recent years, however, the court has been much more skeptical about the anti-circumvention argument, which Chief Justice Roberts once dismissed as a “prophylaxis-upon-prophylaxis” approach.

Most of the McCutcheon oral argument focused on circumvention, with Justice Breyer and Justice Kagan repeatedly suggesting scenarios in which, without the aggregate limits, a donor could direct millions of dollars to a particular candidate via contributions to other candidates and committees, and Justice Alito acidly dismissing these as unrealistic “wild hypotheticals.” Chief Justice Roberts seemed somewhat sympathetic to the need to impose aggregate limits on donations to parties—the focus of the court’s analysis in Buckley—but seemed more troubled by the idea that an individual could be blocked from giving the “modest” maximum contribution to as few as ten candidates. Conceivably, the court could strike down the aggregate limit on donations to candidates while leaving the other aggregate limits in place. This would extend the court’s practice of displacing congressional judgments concerning what campaign finance activities give rise to the corruption and appearance of corruption dangers that the court has said Congress may address.

Such a decision would be less radical than formally overturning Buckley‘s rejection of strict scrutiny for contribution limits but would surely signal a closer court review of whether corruption dangers actually justify a contribution restriction whatever standard the court formally employs. It would also allow a small number of very wealthy individuals who already provide a significant portion of the funds in federal election to play an even bigger role. According to the Sunlight Foundation, a little more than 30,000 people—or 1% of the 1%—provided $1.7 billion or 28 percent of all disclosed federal contributions in 2011-12. And a small subset of this elite—fewer than 4,000 people—each contributed at least $100,000. This is the group with demonstrated political interest and financial capacity most likely to contribute more if the court invalidates the aggregate limits.

Of course, even if the court sustains the challenged limits, great private wealth is likely to continue to play a significant role in financing our elections. In 2011-12, there were nearly 2,000 donors who already contributed more than the aggregate cap in federal elections. Due to lower court decisions in the aftermath of the Supreme Court’s 2010 Citizens United v. Federal Election Commission decision, donations to Super PACs—committees that engage only in independent expenditures for or against a candidate—are not subject to any limits. As a result there were nearly six hundred individuals who gave $250,000 or more, and 95 people who gave more than $1,000,000 each—mega-donations they were able to make even though the aggregate caps on the books.

The rise of Super PAC donations and spending was repeatedly invoked in the McCutcheon oral argument by Justice Scalia and, to a lesser extent Justice Kennedy, for the point that with unlimited independent spending, the aggregate contribution limits can do little to curb the influence of big money on our politics. Given the central role of the court, particularly Justice Scalia and Justice Kennedy, in striking down limits on independent spending and thereby undermining the effectiveness of contribution limits, the technical legal term for this argument is chutzpah. But the justices have a point. Even if the court is willing to accept Congress’s judgment that aggregate contribution limits are needed to prevent evasion of the direct limits on donations to candidates, the court has already authorized a far greater circumvention of those limits.

With contribution limits effectively sidestepped by the unlimited spending of Super PACs, political nonprofits, and other campaign finance vehicles, the old reform strategy of using dollar limits to curb the influence of big money is unlikely to succeed. Even if the court rediscovers judicial modesty, decides to check its tendency to second-guess Congress, and instead reaffirms Buckley‘s validation of both contribution limits and aggregate caps, such a decision will have at best a modest effect in constraining the role of great private wealth in our elections. That goal is more likely to be achieved by mechanisms that dilute the role of great private wealth by increasing the share of campaign money coming from small donors. As a number of states and cities have demonstrated, small-donor matching systems, in which small contributions are matched by public funds, often at a greater than one-to-one ratio, are one way to do this.

In other words, whatever the outcome in McCutcheon, the future of campaign finance reform, if it is to succeed, is likely to depend more on the adoption of public subsidies and other measures that empower small donors, and inspire candidates to pursue their donations, than on the limits at issue in the case.

Richard Briffault is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School in New York, NY, where he teaches election law, state and local government law and property law. He has written extensively on these subjects, with publications appearing in law reviews such as the Columbia Law Review, University of Chicago Law Review and Stanford Law Review. From 1998-2000 he served as Executive Director of the Special Commission on Campaign Finance Reform of the Association of the Bar of the City of New York.

Suggested citation: Richard Briffault, McCutcheon and the Future of Campaign Finance, JURIST – Forum, Nov. 4, 2013, http://jurist.org/forum/2013/11/richard-briffault-mccutcheon-campaign.php.