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McCutcheon v. FEC: Supreme Court Hears Second Act to Citizens United McCutcheon v. FEC: Supreme Court Hears Second Act to Citizens United

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McCutcheon v. FEC: Supreme Court Hears Second Act to Citizens United


(Photo by Charles Dharapak-Pool/Getty Images)

The Supreme Court appeared divided along ideological lines Tuesday during oral arguments on a campaign finance case that could further loosen restrictions on contributions in political elections.

The case, McCutcheon v. FEC, concerns limitations on “aggregate” contributions one can make to federal campaigns during a two-year election cycle. The aggregate cap currently sits at $48,600 for federal candidates and $74,600 for political committees for a grand total of $123,200 per donor for the 2013-14 election season. These caps are separate from base limits—$2,600 to any one federal candidate—which are not directly at issue in the case.


Chief Justice John Roberts, who is likely to hold the deciding vote on the bench, said restrictions on the cumulative amount a person can donate “seems to me a very direct restriction on much smaller contributions” protected under the First Amendment’s free-speech guarantee. Such contributions, Roberts said, “don’t present any danger of corruption,” but can still be limited under current law.

“The concern is you have somebody who is very interested, say, in environmental regulation, and very interested in gun control,” Roberts said. “The current system, the way the anti-aggregation system works, is he’s got to choose. Is he going to express his belief in environmental regulation by donating to more than nine people there? Or is he going to choose the gun-control issue?”

Shaun McCutcheon, a Republican donor and Alabama businessman, joined with the Republican National Committee in challenging the aggregate limits, which curbed his ability to follow through on a plan during the last election cycle to contribute funds to 28 different federal candidates and three Republican committees, including the RNC itself. The suit challenges a Watergate-era law limiting contributions to federal candidates, parties, or political committees and strikes at the heart of Buckley v. Valeo, a 1976 Supreme Court decision affirming those restrictions.


In a somewhat unusual move, the justices decided in August to allow McCutcheon to split his time before the Court with counsel for Senate Minority Leader Mitch McConnell, R-Ky., who filed an amicus brief that more directly challenges how the First Amendment applies to contribution limits. Bobby Burchfield, who argued on behalf of McConnell, said he was “optimistic” following the arguments, despite an aggressive volley of questions from the bench.

“The justices are always very active in these First Amendment free-speech cases,” Burchfield told National Journal Daily. “I thought I was persuasive and we’ll see if five justices agree.”

Tuesday’s case is being characterized by legal experts and campaign finance reform advocates alike as a second act to 2010’s controversial Citizens United opinion, in which the Court held 5-4 that corporations and unions have a First Amendment right to spend unlimited amounts of money in elections. That decision paved the way for super PACs to inject huge amounts of money into last year’s elections.

Conservative Justice Antonin Scalia strongly questioned a system that creates a “line” between expenditures on politics and political contributions.


“That line eliminates some of the arguments that have been made here, which are arguments against big money in politics,” Scalia said. “Big money can be in politics. The thing is you can’t give it to the Republican Party or the Democratic Party, but you can start your own PAC.... I’m not sure that that’s a benefit to our political system.”

The Court’s four liberal justices appeared more supportive of the aggregate caps.

“It has been argued that these limits promote expression, promote democratic participation, because what they require the candidate to do is, instead of concentrating fundraising on the super-affluent, the candidate would then have to try to raise money more broadly in the electorate,” Justice Ruth Bader Ginsburg said. “So that by having these limits you are promoting democratic participation, then the little people will count some, and you won’t have the super-affluent as the speakers that will control the elections.”

McCutcheon was the third case heard by the Supreme Court this term, which began Monday. While the Court’s agenda this term lacks banner cases on issues like the Affordable Care Act, voting rights, and gay marriage that have marked the last few terms, McCutcheon is the first of several on the docket that will wrestle with important constitutional considerations.

Later this term the Court will grapple with affirmative action, abortion rights, public prayer, and the president’s ability to bypass the Senate on recess appointments.

This article appears in the October 9, 2013 edition of NJ Daily as Supreme Court Hears Major Campaign Finance Case.

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