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

(L-R) Supreme Court Justices, Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan applaud before President Barack Obama's State of the Union address during a joint session of Congress on February 12, 2013 in Washington, D.C. Facing a divided Congress, Obama is expected to focus his speech on new initiatives designed to stimulate the U.S. economy.
National Journal
Dustin Volz
Oct. 8, 2013, 4:22 p.m.

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.

What We're Following See More »
THE QUESTION
How Many Jobs Would Be Lost Under Bernie Sanders’s Single-Payer System?
6 hours ago
THE ANSWER

More than 11 million, according to Manhattan Institute fellow Yevgeniy Feyman, writing in RealClearPolicy.

Source:
WEEKEND DATA DUMP
State to Release 550 More Clinton Emails on Saturday
7 hours ago
THE LATEST

Under pressure from a judge, the State Department will release about 550 of Hillary Clinton’s emails—“roughly 14 percent of the 3,700 remaining Clinton emails—on Saturday, in the middle of the Presidents Day holiday weekend.” All of the emails were supposed to have been released last month. Related: State subpoenaed the Clinton Foundation last year, which brings the total number of current Clinton investigations to four, says the Daily Caller.

Source:
LATER TO THIS YEAR’S NADER
Jim Webb Rules Out Independent Bid
7 hours ago
WHY WE CARE

UPDATED: Sen. Jim Webb (D-VA) will not be playing the role of Ralph Nader in this year’s election. Speaking in Dallas today, Webb said, “We looked at the possibility of an independent candidacy. Theoretically, it could be done, but it is enormously costly and time sensitive, and I don’t see the fundraising trajectory where we could make a realistic run.”

Source:
HE’D SIPHON OFF DEM VOTES
RNC Chief Would Welcome Bloomberg
7 hours ago
THE DETAILS

“The lead­ers of the Re­pub­lic­an and Demo­crat­ic na­tion­al com­mit­tees on Wed­nes­day weighed in on the pro­spect of an in­de­pend­ent pres­id­en­tial run by” former New York City May­or Mi­chael Bloomberg (I). “DNC Chair­wo­man Debbie Wasser­man Schultz sug­ges­ted that the former New York City may­or’s pri­or­it­ies are already ‘well cared-for’ in the Demo­crat­ic plat­form, while RNC lead­er Re­ince Priebus wel­comed the idea, say­ing Bloomberg would si­phon off votes from the Demo­crat­ic can­did­ate.”

Source:
THE QUESTION
How Large Is Hillary Clinton’s Delegate Lead?
8 hours ago
THE ANSWER

Three hundred fifty-two, thanks to superdelegates pledged to Clinton, and the vagaries of the delegate allocation process in early states. Not bad, considering her results have been a virtual tie and a blowout loss.

Source:
×