The decision of the United States Supreme Court to review the decision of the United States District Court for the District of Columbia, McCutcheon v. FEC, may signal a serious shift in direction of the troubled law on campaign contributions.
The basic distinction dates back to Buckley v. Valeo, in which the court struck down limitations on the ability of individuals to spend their own money, but backed limitations on the contributions that could be made to political campaigns. The line for the distinction has been tenacious in practice, but relatively difficult to defend in theory. Any ordinary notion of freedom of speech would allow individuals to contribute dollars to support the speech of others, a point that was one prong in the important Supreme Court decision in the much-mooted decision of Citizens United v. FEC.
It is an open question whether this challenge will pass muster. The complaint in question was made by Samuel McCutcheon, who protested the campaign contribution laws that have, since 1974, limited ordinary people from making contributions in excess of $1,000 to any political candidate. These laws also prevent individuals from contributing any more than $25,000 to all candidates in any calendar year, and political committees from contributing more than $5,000 to any political candidate.
As Adam Liptak reports, McCutcheon wanted to make collective contributions in excess of those amounts, but his challenge was rebuffed by a unanimous panel (in an opinion written by the prominent conservative jurist Janice Rogers Brown) that registered a commendable reluctance to wade into areas that are settled by Supreme Court decision. Brown rightly brushed aside the argument that these limitations should be regarded as expenditure limits and not contribution limits, and also noted that the argument for controlling corruption is the only one that has carried weight in limiting what everyone regards as a fundamental speech right.
Yet it is here that the plot thickens. In the current Supreme Court law, there is corruption (as a term of English) and corruption (as a term of art). The difficulty with the plaintiff’s case was that he had to show the latter by a less than exacting standard. But the Supreme Court has already decided that the argument for controlling corruption justifies the limitation on individual contributions, so why then would it not justify the aggregate limits, especially given the risk that pooled contributions to many candidates will circumvent the individual limitations by making all sorts of intra-group transfers?
It is a fair question, and one for which there is no easy answer. But nor is it obvious to conclude, as Judge Brown did, that it is for Congress to decide whether the current limits are too low, when wiping out all contributions would surely generate a fierce constitutional backlash. But, again, the art form that is Buckley v. Valeo supports her conclusion on this point.
So we now know that the stage is set. The question here is whether the tougher approach on associational freedom that marks Citizens United changes the landscape in any case where corruption is asserted. It is not clear which way this will come out. The restrictions in Citizens United were focused on expenditures made any time later than 80 days before a general election or 30 days before a primary, when it is difficult even to imagine quid pro quo corruption justifies the restraint.
We now move into an area where the plaintiff’s claim is a bit weaker and the justification of the state is arguably stronger. There are balancing tests at work here. But no matter how delicate the balance, in the end it has to come down one way or the other.
We shall see whether the Brown opinion wins over the conservative judges. We know that there are four votes to affirm this decision. But will the elusive fifth vote be found? I don’t mind playing skeptic on Buckley, but ask me to play seer: The current law is stable on this question; the theory is weak. So which triumphs? As Judge Brown wrote: “Plaintiffs raise the troubling possibility that Citizens United undermined the entire contribution limits scheme, but whether that case will ultimately spur a new evaluation of Buckley is a question for the Supreme Court, not us.” Ever so true.
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