McCutcheon v. Federal Election Commission
Do aggregate limits on individual political contributions substantially burden the First Amendment right to freedom of association?
The Federal Election Commission (“FEC”) regulates contributions to political campaigns through base limits, the amount one person can give to a single candidate, and aggregate limits, the total amount an individual can give to any number of candidates or political committees. Shaun McCutcheon, a contributor to various candidates and organizations, sued the FEC in district court alleging that aggregate limits infringe his First Amendment rights to freedom of expression and association. He argues that aggregate limits are no longer necessary to satisfy the legitimate government purpose of preventing circumvention of base limits. He alleges that aggregate limits are overbroad and that the only purpose they serve is to prevent affluent donors from associating themselves with candidates. The FEC argues that aggregate limits prevent donors from circumventing base limits, reduce the appearance of corruption, and prevent any given donor from exercising impermissible influence over a politician. In September 2012, the district court upheld the aggregate limits, finding the limits constitutionally permissible. The Supreme Court will determine the permissible constitutional balance between the exercise of First Amendment rights through political contributions and the government’s interest in regulating campaign finance law. This implicates the boundaries of the First Amendment, and raises questions about campaign finance, the role of individual donors in politics, and the freedom of association.
Federal law imposes two types of limits on individual political contributions. Base limits restrict the amount an individual may contribute to a candidate committee ($2,500 per election), a national-party committee ($30,800 per calendar year), a state, local, and district party committee ($10,000 per calendar year (combined limit)), and a political-action committee ("PAC") ($5,000 per calendar year). 2 U.S.C. 441a(a)(1) (current limits provided). Biennial limits restrict the aggregate amount an individual may contribute biennially as follows: $46,200 to candidate committees; $70,800 to all other committees, of which no more than $46,200 may go to non-national-party committees (e.g., state parties and PACs). 2 U.S.C. 441a(a)(3) (current limits provided) (see Appendix at 20a (text of statute)). Appellants present five questions:
- Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national-party committees.
- Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest.
- Whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially.
- Whether the biennial limit on contributions to candidate committees, 2 U.S. C. 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.
- Whether the biennial limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutionally too low.
Congress enacted the Federal Election Campaign Act (“FECA”) of 1971 to increase accountability and fairness in political campaigns. See McCutcheon v. FEC, 893 F.Supp 2d 133, 134–35 (D.D.C. 2012). In 1974, Congress amended FECA to include limits on contributions from individuals to candidates and political parties. See Id. at 135. FECA currently sets two limits on the amount individuals may give to candidates and their parties. Id. FECA’s base limits regulate how much a contributor may give to a particular candidate. See id. The current base limits restrict a person from giving more than $2,500 per election to each candidate, and more than $30,800 per year to a political party’s national committee. Id.Aggregate limits cap the total amount an individual may contribute to all candidates and their authorized committees during an election cycle. See id. The current aggregate limit is $46,200.Id.at 136. Thus, the aggregate limit restricts donors from giving the base limit ($2,500) to more than eighteen candidates.Id. FECA contains provisions to prevent donors from evading these contribution limits. Id. For example, earmarked contributions to a candidate, directed through an intermediary such as a Joint Fundraising Committee (“JFC”), are counted as contributions to that candidate and are applied to the base contribution limit. Id.Anyone who exceeds the limits may be charged with civil or criminal penalties. Id.
During the 2011-2012 election cycle, Alabama resident Shaun McCutcheon contributed to the Republican Party, Republican candidates and various Political Action Committees (“PACs”). McCutcheon v. FEC, 893 F.Supp 2d at 136. As of September of 2012, he had contributed over $38,000 in total to sixteen candidates, the National Republican Senatorial Committee (“NRSC”), the National Republican Congressional Committee (“NRCC”), and the Republican National Committee (“RNC"). Id. McCutcheon wanted to contribute to twelve other candidates and to increase his donations to the NRSC, NRCC, and the RNC, but in doing so he would have violated FECA’s aggregate limit. Id. McCutcheon filed suit in the District Court for the District of Columbia, alleging that the aggregate limits violate his First Amendment rights. See id. The RNC joined the suit because without the aggregate limits they would receive higher total contributions from individuals like McCutcheon. Id.
On September 28, 2012 a three-judge panel sitting for the district court granted the FEC’s motion to dismiss, concluding that FECA’s aggregate limits are justified by the government’s interest in preventing the circumvention of base contribution limits. McCutcheon v. FEC, 893 F.Supp 2d at 140. Additionally, the court explained that Congress, not the judiciary, has expertise in setting limits on political contributions and other campaign finance regulation. Id.at 141. McCutcheon and the RNC appealed directly to the Supreme Court on October 9, 2012. See Notice of Appeal to United States Supreme Court.Under section 403(a)(3) of the Bipartisan Campaign Reform Act (“BCRA”), the Supreme Court has direct appellate review of constitutional challenges to the BCRA. See Jurisdictional Statement of McCutcheon and RNC, at 1. The Supreme Court noted probable jurisdiction on February 19, 2013. See Supreme Court, Proceedings and Orders, in No. 12cv1034.
In this case the Supreme Court will balance the First Amendment right of association with the government’s interest in preventing corruption in campaign spending. See McCutcheon v. FEC, 893 F.Supp 2d at 138–39. McCutcheon argues that aggregate limits substantially burden his First Amendment rights by diluting his ability to associate with others in the political process. Brief for Appellant, Shaun McCutcheon at 21. The FEC maintains that aggregate limits support the government objective of preventing actual or apparent corruption in the political process. Brief for Appellee, Federal Elections Commission at 15–16.
EFFECTS OF FECA’S AGGREGATE LIMITS ON POLITICAL CAMPAIGNS
Supporters of the FEC argue that aggregate limits are an essential check on corruption in political spending and removing them would destabilize all campaign finance regulation. See Brief for Amici Curiae Democratic Members of the United States House of Representatives, in Support of Appellee at 9. For example, eighty-five Democrats in the House of Representatives claim that aggregate limits are necessary because they prevent donors from circumventing established base limits. Id.More specifically, the Campaign Legal Center (“CLC”) and other non-profit organizations assert that striking down aggregate limits would allow donors to circumvent FECA’s base limits by making larger contributions to Joint Fundraising Committees (“JFCs”) that could then be funneled to the donor’s preferred candidates. Brief of Amici Curiae Campaign Legal Center et Al, in Support of Appellee at 10–11. Similarly, Americans for Campaign Reform argues that without aggregate limits donors could circumvent base limits by using PACs as intermediaries to contribute to preferred candidates. See Brief of Amicus Curiae Americans for Campaign Reform, in Support of Appellee at 3–4.
The eighty-five Democrats also argue that aggregate limits prevent government institutions from becoming answerable to small groups of elite contributors rather than to the general public. Brief for Democratic Members, at 9. Other non-profits, including the Communications Workers of America, argue that eliminating aggregate limits would foster the appearance of corruption and erode confidence in government. Brief of Amici Curiae Communications Workers of America et Al, in Support of Appellee at 39.
McCutcheon’s supporters assert that there are sufficient alternatives for preventing corruption in political campaigns. See Brief of Amici Curiae NRSC and NRCC, in Support of Appellant at 3–4. For example, the NRSC and NRCC point out that other rules exist that bar donors from using JFCs to circumvent base limits. Id.at 31. According to these groups, these rules include prohibitions against contributing to political candidates in the name of another donor and against the practice of “earmarking” contributions (contributing to a JFC with instructions on the direction of proceeds). Id. A different justification is given by the Cause of Action Institute (“CoA”), who argues that developments in technology and information-sharing make historical assumptions about disclosure and corruption obsolete. Brief of Amicus Curiae Cause of Action Institute, Inc., in Support of Appellant at 24. The CoA contends that although Congress had reason to require donors to limit aggregate campaign donations in 1974, now the internet allows public and private researchers to regularly disclose contribution amounts to the public, which independently patrols the base limits and provides greater transparency.See Id. at 16–24.
Finally, the Committee for Justice argues that FECA’s aggregate limits further polarize political discourse. Brief of Amicus Curiae Committee for Justice, in Support of Appellants at 2. They maintain that aggregate limits reduce the giving power of individual donors, and thereby give more power to organizations with less interest in moderation and compromise, such as “Super PACs” (organizations which cannot contribute directly to candidates but may spend independently of campaigns for political purposes). Id.at 5.
McCutcheon’s supporters assert that the district court erred by claiming it was not the judiciary’s role to scrutinize legislative judgment about what limits to impose. See Brief of Amicus Curiae Center for Competitive Politics in Support of Appellants at 2. The Center for Competitive Politics claims that deference to the legislature’s expertise in molding campaign finance law is misguided, and that complete congressional control of the standards for campaign contributions increases the likelihood that campaign finance law will favor incumbent politicians. Id.
Amici in support of the FEC disagree, and urge the Court to defer to Congress’ judgment in setting campaign finance limits. See Brief of Democratic Members, at 7. The eighty-five House Democrats maintain that allowing Congress to direct campaign finance law is not an “incumbent protection scheme.” Id.Instead, they argue that having elected officials making these decisions, rather than appointed federal judges, encourages greater accountability through the democratic process. See Id.
The Court will determine whether FECA’s aggregate limits violate the First Amendment by limiting the total amount that an individual can contribute to candidates, parties, and political committees. McCutcheon and the RNC argue that aggregate limits are unconstitutional because they place substantial burdens on an individual’s First Amendment rights. See Brief for Appellant, McCutcheon at 17, Brief for Appellant, Republican National Committee at 12. The FEC counters that McCutcheon’s argument, that the First Amendment prohibits the imposition of aggregate contribution limits, is foreclosed by the Court’s holding in Buckley v. Valeo. See Brief for Appellee, Federal Election Commission at 16; 424 U.S. 1 (1976). In Buckley, the Court addressed the constitutionality of aggregate limits, and held that Congress has the authority to impose aggregate limits on an individual’s contributions to candidates, parties, and political committees to prevent individuals from circumventing base limits on political contributions. Id.The FEC contends that under Buckley, the Court cannot apply strict scrutiny to assess whether aggregate limits violate the First Amendment. See Brief for Appellee at 17. On the other hand, McCutcheon argues that aggregate limits impose a substantial burden on the exercise of First Amendment rights, and therefore must be subject to strict scrutiny. See Brief for Appellant at 33.
ARE AGGREGATE LIMITS SUBJECT TO STRICT SCRUTINY UNDER THE FIRST AMENDMENT?
In Buckley, the Court applied intermediate scrutiny to determine whether contribution limits violate First Amendment rights, and declined to apply strict scrutiny to aggregate limits and base limits. See Buckley,424 U.S. at 20. The Court held that limits on campaign contributions are constitutional if the government “demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment.” See id. at 25.
McCutcheon argues that strict scrutiny must be applied because of the heavy burden placed on the core First Amendment rights of association and expression. See Brief for Appellantat 31-32. McCutcheon asserts that aggregate limits place a substantial burden on freedom of expression because they prohibit an individual from adding their voice to the message of a particular candidate or party through contribution. See id. at 22. Further, McCutcheon argues that aggregate limits substantially burden individuals’ right of association by preventing them from associating with candidates through campaign contributions. See id. at 25. In McCutcheon’s view, aggregate limits effectively force individuals to choose between associating themselves with certain candidates through contributions and retaining the right to associate with other candidates they would like to support. See id. at 28.
McCutcheon further contends that although aggregate limits withstood a First Amendment challenge in Buckley, the current aggregate limits are distinguishable from Buckley and are no longer necessary under current campaign finance law. See Brief for Appellant at 35. Similarly, the RNC suggests that there are distinctions between aggregate limits and base limits, and that aggregate contribution limits should be subject to a higher standard of scrutiny. See Brief for Appellant, RNC at 8. First, the RNC argues that the limits serve different purposes: whereas the justification for base limits is that they protect against quid-pro-quo risk (individuals donating money for political favors) because a particular candidate receives the contribution, the purpose of an aggregate limit is to restrict the total contributions of an individual, not to restrict the contribution received by a particular candidate. See id. at 8. Additionally, the RNC contends that base and aggregate limits are difference because base limits restrict how much an individual can contribute, whereas aggregate limits restrict how many entities an individual can support. See id. at 9. The RNC argues that these differences warrant a higher level of scrutiny for aggregate limits because aggregate limits ultimately impose greater burdens on First Amendment rights. See id.
The FEC claims that Appellants do not present any rational reason to overrule the distinction made in Buckley between contribution and expenditure limits. See Brief for Appellee at 25. The FEC argues that since the Court decided Buckley, the Court has consistently reaffirmed the distinction between expenditures limits and contribution limits by applying strict scrutiny only to expenditure limits. See id. The FEC contends that this distinction is necessary because it exhibits the “fundamental difference between money spent to advertise one’s view independently of the candidate’s campaign and money contributed to be spent on his campaign.” See id. at 25-26. (quoting FEC v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985)).
Moreover, the FEC argues that the Court should adhere to Buckley’s holding that aggregate contribution limits are not subject to strict scrutiny. See Brief for Appellee at 17. The FEC contends that the Court has consistently treated aggregate limits as minor speech restrictions subject to a lower level of scrutiny under the First Amendment. See id. at 17. The FEC explains that in Buckley the Court held that only limits on expenditures, not on contributions, are subject to strict scrutiny under the First Amendment. See id. at 18. Furthermore, the FEC argues that in Buckley the Court discussed aggregate limits only in terms of freedom of association, and thus applied a lesser standard of scrutiny. See id. at 18-19. The FEC thus argues that the differences pointed out by the RNC between base limits and aggregate limits are misplaced. See id. at 21. Rather, the FEC contends that aggregate limits, much like base limits, do not “reduce the total amount of money potentially available to promote political expression.” See id. (quotingBuckley, 424 U.S. at 22). Instead, the FEC argues that aggregate limits require political parties and candidates to raise money from a greater number of individuals, and thus encourage individuals to use funds on direct political expression rather than contributing beyond the statutory limit. See id.
ARE AGGREGATE LIMITS PERMISSIBLE UNDER THE FIRST AMENDMENT?
Once the Court decides whether to apply strict scrutiny to assess the constitutionality of aggregate limits, the Court must decide whether FECA’s aggregate limits violate the First Amendment rights.
The FEC argues that the Court should follow the precedent set by Buckley and uphold aggregate limits as a valid precaution to help prevent political corruption. See Brief for Appellee at 31. The FEC explains that the Court in Buckley found that contribution limits are permissible because they further the important government interest of preventing “the actuality and appearance of corruption resulting from large individual financial contributions.” See id. at 32 (quoting Buckley 424 U.S. at 26). Relying on Buckley, the FEC argues that aggregate limits are merely a subset of the individual contribution limits found to be constitutional.See id. at 34. Furthermore, the FEC argues that the Court should follow its reasoning in Buckley that even though aggregate limits are only a corollary limit to the individual contribution limit, aggregate limits serve the important purpose of preventing a person from contributing excessively massive amounts of money to a particular candidate by making contributions to the candidate’s political party or to committees that will donate to the candidate. See id. at 33.
McCutcheon argues that aggregate limits do not actually prevent circumvention of anti-corruption measures, and thus, the government has not satisfied their burden of establishing an interest in preventing actual corruption. See Brief for Appellant at 42. McCutcheon asserts that the circumvention problem identified in Buckley is now adequately addressed by current campaign finance law. See id.at 43. For example, McCutcheon claims that current law requires that individual contributions to candidates directed through intermediate sources be “treated as contributions from such person to such person.” See id. Further, McCutcheon asserts that aggregate limits only guard against hypothetical corruption, and that protection against possible corruption is not an adequate reason for the government to burden First Amendment rights. See id. at 45. In McCutcheon’s view, aggregate contributions do not prevent a cognizable risk of corruption because the original contributor does not have control over the direction of the funds once they have been donated to a political party or other intermediary source. See id. at 49. Moreover, McCutcheon contends that even if aggregate limits further a legitimate government interest, they are not a “closely drawn” means of preventing corruption. See id. at 55( quoting Buckley, 424 U.S. at 25). McCutcheon argues that they are not “closely drawn” because they burden a broad range of First Amendment rights solely to prevent hypothetical corruption. See id. at 56.
The FEC counters that FECA’s aggregate limits serve the same purpose as those that were upheld as constitutional in Buckley. See Brief for Appellee at 34. For instance, the FEC argues that it is more likely today that an individual will use a PAC as an intermediary source to contribute to a candidate beyond the base limit, than in 1976, when Buckley was decided. See id. at 36. The FEC also claims that today there are five times as many political committees as in 1976. See id. Additionally, the FEC contends that it is now much easier for an individual to find out who a political committee supports by looking on their website. See id. Moreover, the FEC argues that a system without aggregate limits would allow an individual to provide millions of dollars, possibly at the command of the president or any other politician, to finance a particular candidate or parties. See id. at 40. As a result, the FEC contends that a system without aggregate limits has the potential to create rampant corruption. See id.
This will be a landmark case in the area of campaign finance law. The FEC and its supporters argue that eroding FECA’s aggregate limits would invite corruption and compromise elected officials’ independence from large donors. McCutcheon and the RNC contend that striking down aggregate limits would significantly alter how money is used in political campaigns, and that the greater harm is in permitting aggregate limits to prevent individuals from freely associating themselves with candidates. The Court’s decision will largely hinge on the standard of scrutiny the Court applies to evaluate the burden of FECA’s aggregate limits on First Amendment interests. The outcome will also depend on how the Court views Buckley and whether that decision should still apply given the changes in American law and society since 1976.
- Adam Liptak, New York Times, Justices Take Case on Overall Limit to Political Contributions (Feb. 19, 2013)
- T.W. Farnam, Washington Post, McCutcheon Case Could Give Citizens United a Run For Its Money In Supreme Court (Feb. 20, 2013).
- Paul Blumenthal, Huffington Post, Next Citizens United? McCutcheon Supreme Court case Targets Campaign Contribution Limits (July 31, 2013)