McCutcheon v. Federal Election Commission: The next Citizens United?

Alexander Fullman previews the upcoming Supreme Court arguments in McCutcheon v. Federal Election Commission, a case that could lead to the spending of even more money in United States elections.

800px-University_at_Buffalo_voting_boothIn 2010, the Supreme Court delivered its controversial 5-4 decision in Citizens United v. Federal Election Commission, which set the stage for enormous sums of money to be spent in elections through super PACs and other independent entities.

On Tuesday, October 8—less than three years after deciding Citizens United—the Supreme Court will hear arguments in McCutcheon v. Federal Election Commission, a case which has the potential to flood millions of dollars more into United States elections—and this time, directly into the coffers of candidates for elected office.

At issue in McCutcheon are the aggregate limits on contributions to candidates for federal office. While base limits to candidates regulate the amount of money that an individual can contribute directly to a particular candidate or party committee, the aggregate limits cap the amount a person can cumulatively contribute to all candidates for federal office and party committees over the course of each two-year election cycle. These limits currently stand at $48,600 per cycle for candidate committees and $74,600 for contributions to non-candidate committees such as party committees, for a total of $123,200.

These limits have existed since 1974, when, in the wake of the Watergate scandal, Congress amended the Federal Election Campaign Act of 1971 to limit the amount that can be contributed to individual candidates and the aggregates. The aggregate limitations were upheld by the Supreme Court in its seminal 1976 campaign finance case Buckley v. Valeo, which established a distinction between contributions and expenditures, whereby Congress could regulate the former in order to prevent quid pro quo corruption and its appearance, while expenditures, posing no corruption threat, could not be regulated.

The Supreme Court has stressed, however, that preventing corruption and its appearance is the sole constitutionally permissible objective for campaign finance laws, and that any attempt to “level the playing field” between candidates unconstitutionally violates the First Amendment. The McCutcheon case offers the Supreme Court the opportunity to revisit its decision in Buckley with respect to the constitutionality of the aggregate contribution limits, clarify the Court’s understanding of what constitutes corruption, and the  scope of the government’s interest in preventing it. Several of the Justices, including Antonin Scalia, Anthony Kennedy, and Clarence Thomas, have already called for the distinction between contribution and expenditure limits to be overruled. Tuesday’s oral arguments may provide the first hints as to whether or not their conservative colleagues, Chief Justice John Roberts and Justice Samuel Alito, will join them to create a majority to overturn the long-standing distinction that has for decades been a cornerstone of the Court’s campaign finance jurisprudence.

Opponents of these aggregate limits—including Shaun McCutcheon, a wealthy businessman from Alabama—argue that the aggregate limits unconstitutionally burden their First Amendment rights to freedom of expression and association, and prevent them from engaging in core political speech. Should McCutcheon succeed at the Supreme Court and the aggregate limits fall, individuals would potentially be able to contribute as much as $3.6 million in a single election cycle by contributing the maximum amount under the base limits to a party’s committees and slate of Congressional candidates. McCutcheon, joined by the Republican National Committee and Senate Minority Leader Mitch McConnell, also argues that unlike the base limitations, which protect against corruption by restricting the amount of money a candidate can receive from a particular donor, the aggregate limits fail to serve an anti-corruption interest, instead restricting only the total contributions made by an individual. With the base limits of $2,600 in direct contributions per candidate per election still in place, McCutcheon contends that removing the aggregate limits would not create an appearance of corruption.

In a surprising development, Erin Murphy of the firm Bancroft, PLLC was selected to argue on behalf of McCutcheon and the Republican National Committee. Murphy, a protégé of former solicitor general and prominent Supreme Court attorney Paul Clement, will make her first argument before the Supreme Court with the case.

Murphy previously clerked for Chief Justice John Roberts during the 2008–2009 term, and went on to complete a Bristow Fellowship in the solicitor general’s office. Murphy replaces James Bopp Jr., a long-time foe of campaign finance reform, who argued the case in the United States District Court for the District of Columbia and was expected to argue in the Supreme Court as well. Senator McConnell, who was granted ten minutes of oral argument time, will be represented by Bobby Burchfield.

In defending the law, however, the Obama administration and the Federal Election Commission maintain that the aggregate limitations are an important tool to prevent corruption and its appearance in the political world by preventing donors from circumventing the base limits on contributions given directly to candidates. Moreover, the administration holds that the aggregate limits also reduce the appearance of corruption and prevent donors from holding undue influence over politicians. They argue that the Court should adhere to the Buckley precedent and uphold the aggregate contribution limits, as did the three-judge panel of the district court before the Supreme Court accepted the case for review. Solicitor General Donald Verrilli will argue the case on behalf of the Obama administration and the FEC.

The McCutcheon case is certain to join the list of important campaign finance cases decided by the Roberts court, and will likely answer two questions that have emerged in recent years: to what extent does the Court continue to rely on Buckley‘s contribution/expenditure framework, and how broadly will the Court define corruption and its appearance? In the end, the McCutcheon case is likely to have significant implications for campaign finance in the United States, with the potential to continue the deterioration of the country’s campaign finance system—and to bring millions of dollars more into our elections.

Alexander Fullman is a Marshall Scholar pursuing graduate studies in political science at the University of Oxford’s Department of Politics and International Relations.

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