First Amendment: Political Speech and Campaign Finance

In Citizen’s United v. FEC, the Roberts Court struck down a key provision of the Bipartisan Campaign Reform Act (BCRA) that limited independent political expenditures made by corporations, associations, and labor unions. This term in the case of McCutcheon v. FEC, the Court continued to dismantle the BCRA, striking down the Act’s aggregate-contributions limits. This provision, which had been previously upheld in Buckley v. Valeo, imposed a biennial aggregate (dollar-amount) limit on individual contributions to national party and federal candidate committees.

The BCRA imposes two types of limits on campaign contributions. Base limits restrict how much money a donor may contribute to a particular candidate or committee while aggregate limits restrict how much money a donor may contribute in total to all candidates or committees. Writing for a plurality, Chief Justice Roberts concluded in McCutcheon v. FEC that the aggregate limits violate the First Amendment’s protection of political speech. In Buckley v. Valeo, the Court identified only one legitimate governmental interest for restricting campaign finances: preventing quid pro quo corruption or the appearance of such corruption. According to the majority, the BCRA’s aggregate limits on campaign contributions do not further that interest. In the Court’s view, spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption; nor does the possibility that an individual who spends large sums may garner influence over or access to elected officials or political parties. Rather, Chief Justice Roberts concluded that the line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights, and the Court must “err on the side of protecting political speech rather than suppressing it.” Although the aggregate limits had been technically upheld in Buckley, the Court argued that the issue was collateral and not fully fleshed out in that prior opinion. Accordingly, it did not fret overruling the three sentences of Buckley that addressed aggregate limits.

Justice Thomas did not join the opinion of the Court but wrote separately to express his view that under the First Amendment all restrictions on campaign contributions are invalid.

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented, lamenting that the majority opinion “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” According to Justice Breyer the majority misconstrued the nature of the competing constitutional interests at stake by understating the importance of protecting the political integrity of democratic government. In doing so, the majority created a loophole that in the dissent’s view may allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Justice Breyer appended copious tables and exhibits to his opinion in an attempt to show just how powerful and potentially corrupting unbridled campaign spending is, arguing that the majority fails to understand the legitimate interests that Congress has in limiting that sort of influence.

The effects of McCutcheon, like Citizens United, will likely be far-reaching, perhaps even producing noticeable results as early as the upcoming 2014 midterm elections. Sophisticated, deep-pocketed donors like McCutcheon will now be able to donate to an unlimited number of individual campaigns both in their home states and without (albeit still constrained by the BCRA’s contribution limits for individual campaigns). As for those contribution limits, the Roberts Court’s consistent antagonism towards the BCRA coupled with McCutcheon’s willingness to overrule a (small) portion of Buckley may signal a more general willingness to reevaluate those limits as well.