Cases like McCutcheon v. FEC aren't about free speech. They're about how much influence the wealthiest Americans should have over our elected officials.
On Tuesday, October 8, the Supreme Court will hear oral arguments on McCutcheon v. Federal Election Commission. This case is just the latest episode in the fight to define money as either part of the unassailable right to free speech or a corrupter of the electoral process, and its effects will determine how much money the richest of Americans can contribute to 2014 campaigns.
The case pits the Republican National Committee (RNC) and Shaun McCutcheon, CEO of Coalmont Electrical Development and treasurer for the Super PAC Conservative Action Fund, against the FEC. At question is whether the individual aggregate contribution limit established by the Bipartisan Campaign Reform Act (a.k.a. McCain-Feingold) is unconstitutional under the First Amendment’s freedom of expression clause. This is not about how much an individual can give to one specific candidate, but how much an individual contributor can give in total during a two-year campaign cycle. Currently, an individual may give an aggregate biennial total of $123,200, with a $48,600 aggregate limit to candidates and a $74,600 limit to non-candidate PACs as well as national party committees.
McCutcheon wanted to give $25,000 to each of the three Republican national committees (which is under the $32,400 contribution limit to a national party) and $1,776 to 28 congressional candidates (also under the $2,600 contribution limit to a candidate). It almost seems trivial to contest this, because his total contributions to candidates would have only been $1,128 over the $48,600 aggregate limit and $400 over the political party limit. But that’s the point: stepping just over the line creates a case where those opposed to campaign contribution limits can fight to weaken Buckley v. Valeo, the Supreme Court case that affirmed the need for those limits.
The whole reason aggregate limits were put in McCain-Feingold in the first place was to close a loophole left open by the Federal Election Campaign Act in 1971 after Buckley. The Burger Court decided in 1976 that contribution limits “are appropriate legislative weapons against the reality of appearance of improper influence stemming from the dependence of candidates on large campaign contribution.” Contribution limits exist to mitigate corruption as well as the appearance of corruption, the idea being that candidate feels a sense of indebtedness to donors who give them large contributions and will vote in ways favorable of those contributors. Going back to Buckley, a ceiling on contributions “serves the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion.” Coating billboards, TVs, and websites with “support Mr. Smith” ads may get a message out to the general public, but it doesn’t help voters make a more informed decision or learn about the issues.
To quote the Brennan Center for Justice’s amicus brief on McCutcheon, “ [a] system of effectively unlimited contributions would permit a tiny class of donors to wield vastly disproportionate influence over our elected representative, encouraging the control of government by faction.” There are already enough problems with giant advocacy organizations, PACs, and the richest of our nation controlling and/or influencing elections: do we really need to encourage an increase in the amount of money they pour into our electoral process by banishing aggregate contribution limits?
Some believe that a removal of these aggregate limits will allow for more responsible contributions, by giving mega-donors like Sheldon Adelson (who gave $150 million in 2012 contributions) room to give more of his money to the more-highly regulated RNC rather than to Super PACs, but the removal of aggregate limits would not increase the annual $32,400 individual contribution limit a mega-donor could give to a national party committee. For those with nearly unlimited financial resources, it will just be a continuation of their already high giving patterns. Currently, McCutcheon could contribute the $2,600 maximum to 18 candidates without going over the aggregate limit; without it, he could give that amount to 50 or 100 different candidates.
We don’t know whether ending aggregate contribution limits will steer money away from Super PACs, but that’s not the question we should be asking. The question we do need to ask ourselves is how much money we want to allow a single person to put into our electoral system. And at what point do the millions of one person outweigh the votes of an entire constituency?
For further reference, see the U.S. Court of Appeals for the District of Columbia’s opinion against McCutcheon, the amicus briefs (and arguments) submitted to the Supreme Court on McCutcheon, and information on how the Roberts Court has voted on First Amendment cases.
Jeff Raines is the Chair of the Student Board of Advisors for the Roosevelt Institute | Campus Network.
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