McCutcheon v. FEC: Why it matters

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The Supreme Court was asked to decide last week in McCutcheon v. Federal Election Commission, whether the government may limit how many candidates an individual can contribute to by means of an aggregate limit on how much he or she may contribute. Federal law imposes “base limits” on the amount an individual may give to any single candidate, party, or PAC, but also imposes “aggregate limits” — the ones at issue in this case — on the total that may be given to all recipients combined.

Mr. McCutcheon, a self-made businessman from Alabama who cares about the direction of our country, contributed to seventeen candidates in 2011-2012, and identified 11 more candidates he wished to support, almost all in the amount of $1,776 each. Even though each contribution would have been well within the base limit (then $2,500 per candidate, per election), Mr. McCutcheon could not give these additional contributions because he would have exceeded the aggregate limit of $46,200.

Since Buckley v. Valeo was decided in 1976, the Supreme Court has recognized the fundamental rights at stake when it comes to political spending and contributions, and it has held that Congress may only restrain this freedom where necessary to address a threat of actual or apparent quid pro quo corruption. While actual bribery is, of course, a felony, the Supreme Court upheld base limits as an additional, legitimate means of targeting this quid pro quo corruption threat. Mr. McCutcheon, while not challenging the base limits, makes this simple argument: since he is limited to contributing a modest amount to any single candidate, an amount which Congress itself found to be noncorrupting, on what basis may the government limit the total number of contributions he can make?

How can Candidate Smith be corrupted by a contribution to Candidate Jones?

What seems obvious here is in fact true: aggregate limits simply do not address actual or apparent quid pro quo corruption. Consequently, the government cannot assign Mr. McCutcheon an aggregate limit and force him to choose where to allocate his remaining ration of First Amendment rights for the election cycle. Should he contribute up to the limit to support primary challengers early in 2013, or should he save a few contributions to help fight the other side in the general election? For speech to be free, it must be free from such arbitrary government restraints.

The speech in McCutcheon is at the core of the First Amendment, and the aggregate limits are subject to an exacting — if not yet the highest — scrutiny of government restraints on speech. They received a bit of that scrutiny in oral argument Tuesday, and did not fare well. The government has hung its hat on a single, wildly implausible scenario. Since Congress has permitted candidates and political parties to raise money through joint fundraisers, the government imagines a member of Congress soliciting a $3.5 Million check from a single contributor to be divided among all the participants — all within the base limits — and then raising the quite improbable specter of all those participants transferring their scarce funds to a single candidate, who would then be grateful to the original contributor.

Set aside the fact that current regulations already require this entire scheme to be accomplished without any prearrangement or discussion with the contributor, lest it violate the earmarking rules and bans on contributions in the name of, or with the funds of, another. The government’s fanciful scenario actually illustrates precisely why the aggregate limits are unconstitutional.

There are narrower means of addressing the Government’s far-fetched hypothetical that do not involve blunt restrictions on all contributions, the vast majority of which have nothing to do with any joint fundraiser.  Most obviously, Congress is free to regulate the joint fundraising committees it established. Congress could limit the amount that federal officeholders may solicit to a joint fundraiser. It could go even further and prohibit contributors from giving more than a certain amount to a joint fundraiser. What it may not do is use a blunder-buss approach, indiscriminately restricting the rights of Americans without an articulable justification, or take a sledgehammer to constitutional rights where a scalpel will do. The Court cannot uphold this over-broad regulation at any level of scrutiny.

Vindicating Mr. McCutcheon’s rights will be a victory for the rule of constitutional law and the principle that any restraint on protected speech must not only be justified by the most important of interests, but must also be narrowly drawn so that it does not unnecessarily limit our freedoms.

Jerad Najvar and Dan Backer represent Shaun McCutcheon and initiated McCutcheon v. FEC.