Sometimes at the Supreme Court, it is not if you lose, but how. That principle will be on full display in McCutcheon v. Federal Election Commission, the campaign finance case the Supreme Court will hear next Tuesday, the second day of the new term. If the government loses big, it could mark the beginning of the end of any limits on campaign contributions given directly to candidates in federal, state, and local elections.
Citizens United and the rise of super PACs are already flooding the election system with money. But so far we’ve managed to keep a little distance between the money and the candidates themselves. If hard-line conservatives get their way, that distance will evaporate, and soon you could write a multimillion-dollar check that would go right into a candidate’s bank account. The question is whether Chief Justice John Roberts will hold back the conservative majority back from the brink—though if he does, Justice Antonin Scalia will surely taunt him for it.
At issue in McCutcheon are “aggregate” campaign finance limits in federal elections. Federal law currently caps at $48,600 the total amount than an individual can give to all federal candidates for office during a two-year election cycle. It also limits to $74,600 the total amount an individual can give to political committees that make contributions to candidates and sets a total cap of $123,200 for contributions in the two-year cycle.
Since 1976, the Supreme Court has taken a divided approach to the constitutionality of campaign finance limits when opponents challenge them as violating First Amendment rights of free speech and association. For contribution limits, the court applies a relatively lax standard of review, upholding limits when they are reasonably related to a legitimate government interest. In the 1976 case of Buckley v. Valeo, the court upheld a $25,000 aggregate limit (as well as a ceiling of $1,000 per candidate, since raised to $2,600). The court held that limiting the amount of contributions imposed only a “marginal” restriction on speech (since the important thing was the act of contributing, not the amount). And the court said the government’s interest in preventing corruption and the appearance of corruption justified that marginal restriction.
By contrast, Buckley held that spending limits (for example, limiting how much an individual spends independently on ads to promote a candidate) had to meet the higher legal test of “strict scrutiny,” which meant striking them down unless they were narrowly tailored to meet a compelling government interest. Spending limits were not narrowly tailored to serve the goal of combating corruption, the court said, because individuals who did not coordinate with candidates could not corrupt them (a debatable point, for sure).
In the many years since Buckley, the court’s campaign finance decisions have vacillated wildly in results and reasoning, but the basic Buckley distinction between lax review of contribution limits and strict review of spending limits has hung on. That may be about to change.
In 2010, in Citizens United, the Supreme Court overturned two earlier cases that upheld limits on the campaign spending of corporations and unions. Along the way, the court narrowed its definition of “corruption” to exclude buying access to politicians or ingratiating oneself with them—characterizing corruption as closer to outright bribery involving a quid pro quo. In Citizens United, Justice Kennedy wrote for the court majority that “there is only scant evidence that independent expenditures even ingratiate. … Ingratiation and access, in any event, are not corruption.”
That rejiggered definition could now rise again in McCutcheon. In Citizens United, the justices said that nothing in the case affected the standard for reviewing contribution limits. But they haven’t shown much respect for precedent in the campaign finance arena. And Senate Minority Leader Mitch McConnell, a leading opponent of campaign finance laws, has urged the court to start applying the strict scrutiny standard—the one that killed limits on spending—to the review of contribution limits. The court recently granted his lawyer time at the McCutcheon oral argument to make that case.
I am not certain that the five conservative justices who struck down the corporate spending limits in Citizens United will strike the aggregate limits in McCutcheon. The concerns that would raise about corruption are nicely illustrated in an amicus brief from the Campaign Legal Center, a public interest group supporting campaign finance regulation. A member of Congress, for example, would be able ask for a single $3.6 million contribution (through a “joint fundraising committee”—essentially an arrangement to take a check to be disbursed to more than one campaign) to distribute to all federal congressional candidates and to national and local political parties. He or she could keep from that check only $5,200 ($2,600 for the primary and another $2,600 for the general election), but the parties and PACs could then use the passed-on funds to run ads attacking his or her opponent. As a big bundler, this member of Congress would have great influence over other members. And, of course, the $3.6 million donor would have the most influence of all.
But let’s suppose that this argument doesn’t convince the Citizens United Five. I can already hear Scalia’s question: “How can a $2,600 contribution to a candidate from a maxed-out donor be corrupting when another $2,600 contribution to that same candidate from a different donor is OK?”
Justice Clarence Thomas (and to some extent, Justice Anthony Kennedy) have also already indicated they want to strike down contribution limits. The question is what Chief Justice Roberts and Justice Samuel Alito will do. Neither has voted to uphold a campaign finance limit in the five campaign finance cases that each has heard. Yet they have shown some restraint along the way.
In a precursor to Citizens United, for example, Roberts and Alito refused to fully strike down corporate spending limits, instead putting the issue off for another day. “This faux judicial restraint is judicial obfuscation,” Scalia declared in a concurring opinion.
The same thing could happen here. Roberts could write an opinion that didn’t reach the “strict scrutiny” question, or how to define corruption as applied to contributions. He could say that even under the pre-Citizens United rules, the government should lose.
That would not be a good result from the point of view of campaign finance law because members of Congress could starting accepting those multimillion-dollar joint fundraising checks. But it would be better than the Scalia alternative, which would call into question all contribution limits in all races across the country. Once again, liberals have to hope Roberts will show some restraint. Given Citizens United and his recent decision hobbling the Voting Rights Act, however, it’s not at all clear that he will.
