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.

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