- McCutcheon v. Federal Election Commission A 5-4 split decision, the Court (Roberts,CJ) reversed and remanded, holding aggregate contribution limits did not further the federal government’s legitimate interest in prohibiting quid quo pro corruption, or its appearance, and did seriously impede participation in the political process and was thus afoul of the First amendment as an unconstitutional restriction on political speech. The Court did not disturb limits on contributions to a single candidate, only aggregate limits. Thomas, J offered an opinion concurring in judgement. The dissent (Breyer, J) was joined by Ginsburg, Sotomayor and Kagan, JJ, arguing this case, taken in tandem with Citizens United v. Federal Election Commission, creates a loophole in the law allowing a single person to contribute millions of dollars to influence politics.
It would seem the Chief Justice takes his First amendment straight up, without even a water back. Personally, I happen to favor that. The facts in this one are pretty simple. McCutcheon is a private citizen. In the 2011-12 election cycle, he contributed to 16 different political candidates, each in the maximum amount permitted under McCain-Feingold. He wished to contribute to an additional 12 candidates, plus some political action committees, but was prohibited from so doing because the previous contributions had reached the maximum total amount each citizen could spend in the “aggregate limits” cap. He sued in District Court to be allowed to make the additional contributions, joined by the Republican National Committee, and lost; the District Court reasoning if single candidate limits were Constitutional to prevent quid pro quo corruption, then the aggregate limits were also permissible as they assisted the Congress in attaining the over all goal.
The Court held, in Buckley v. Valeo, political contributions are unquestionably protected political speech under the First amendment. Self evidently restrictions on such contributions must run afoul of the First amendment as well. This right is not absolute and the Congress can limit it under certain circumstances, with the judicial test being to “prevent quid pro quo corruption, or the appearance thereof.” In the majority opinion CJ Roberts writes the only permissible case for such limits are described in the judicial test I just wrote and specifically the Congress may not limit political contributions for the purpose of reducing the total amount of money in politics. In judgement, the Court determined the aggregate contribution limits reduced not only speech rights, but associational rights as well, all while having no effect on preventing corruption, which is a legitimate government interest. The question the opinion asks is, if one can contribute the base amount (I can’t give an exact figure, it slides every cycle indexed for inflation) to 16 political candidates, how does giving the exact same amount to a 17th candidate bring forth corruption? That’s a very good question, and this is a decision that is at least headed in the right direction.
The case wouldn’t have been any fun without a separate assent from Justice Thomas. He concurs in judgement– that the aggregate contribution limits are an unconstitutional restriction on political speech– but he disagrees with the reasoning. Thomas would overturn Buckley as well. Like myself, he thinks any restrictions on political speech at all, for any purpose, are too many. Political speech is political speech and that’s protected under the First, end of story and off. There are other means of dealing with corruption, starting with a wrist slap (the currently preferred method by the Congress) and ending with (my preference) the tall tree, short rope remedy.
In the dissent, Breyer waxes lyrical. The political left has been overwrought about this sort of thing forever, and Citizens United— a decision where corporations, being associations of stockholders, were granted the same speech rights as individuals– set them all frothing at the mouth. The Court’s recent tendency of late in advancing First amendment interests has effectively eviscerated campaign finance laws (I wouldn’t be surprised to see the base single-candidate limits lifted in a future case). Campaign finance has been a big political victory for the left– it’s prevented the right from fully funding their candidates– and they are furious about losing it. In essence, Breyer’s argument is the court had improperly balanced the “competing Constitutional interests at stake,” arguing the decision “understates the importance of protecting the integrity of our governmental institutions.” Bottom line, he doesn’t have a Constitutional leg to stand on; or at least he fails to cite just which section of the Constitution authorizes the Congress to regulate the integrity of our governmental institutions; or why he thinks some draconian penalties (tall tree, short rope, I said) for corruption wouldn’t do the job, all the while putting the onus where it belongs, on the officeholders, not the People. In short, the Constitution protects the People’s right to speak. How the Congress wishes to go about protecting governmental integrity is their problem. The lefties will all tell you there’s now a loophole in campaign finance laws big enough to allow a single person to contribute millions of dollars in a single election cycle if they want to. They’re right, there is. They’ll also scream and shout about how this is all a very bad idea. What they won’t say is how it offends the Constitution. They won’t say that because it doesn’t.
I shouldn’t have to discuss the impact as it’s fairly plain, but briefly: the political left has been trying to muzzle speech they don’t like since they came into existence. They had gotten fairly good at it for a while there. This decision, while not going as far as I’d have liked, is a step in the direction of restoring some civil liberty.