A new campaign finance case is at the Supreme Court this term which, for some, harkens back to the Court’s decision in Citizens United v. FEC in 2010. However, there are some very important distinctions between this case, which involves aggregate campaign contribution limits for individuals, and Citizens United, which dealt with limits on independent expenditures of corporations, associations or labor unions.
First, a little bit of history on Citizens United. Prior to 2010, the Federal Elections Commission (FEC) prohibited corporations and unions from “to mak[ing] a contribution or expenditure” to fund “electioneering communications”1 within 30 days before a primary or 60 days before a general election.2 Citizens United is a conservative, non-profit, political organization in the U.S. that is “dedicated to restoring our government to citizens’ control.”3 During the 2004 election season, Citizens United filed a complaint with the FEC, claiming that commercials promoting Michael Moore’s new film Fahrenheit 9/11, which criticized President Bush’s response to the 9/11 terrorist attacks, were inherently political in nature and should not be allowed to air during the 60 days before the general election. The FEC dismissed the claim, stating that “the film, associated trailers and website represented bona fide commercial activity, not “contributions” or “expenditures” as defined by the Federal Election Campaign Act.”4 As a result, Citizens United began itself producing conservative documentaries. In the 2008 election season, Citizens United made another film, which was highly critical of Senator Hillary Clinton, called Hillary: The Movie.5. In the months leading up to the Democratic primaries, Citizens United sought to advertise their new film on television, but were blocked by the U.S. District Court for the District of Columbia which found that the ad and films were solely intended to be political commentary and “electioneering communications” and thus violated FEC regulations. The Supreme Court took up the case and reversed the decisions of the lower courts on free speech grounds.6. Contrary to popular belief, the Supreme Court did not overturn the ban on direct campaign contributions to candidates on behalf of corporations and labor unions or remove the limits on how much donors can contribute to a campaign. What it did do was find unconstitutional the limitations placed on corporations’ and labor unions’ free speech rights by forbidding them from advocating for political candidates of their choosing. Thus, corporations can now freely spend their own money to support or oppose political candidates through independent communications such as advertisements.
To understand McCutcheon, we need to look at a case called Buckley v. Valeo,7 which is the current definitive authority on campaign finance case law. In this case, the Supreme Court ruled that the First Amendment forbids Congress from limiting expenditures made by candidates. Specifically, Congress couldn’t regulate how much a candidate spends on TV ads or how much of their own personal money they use. However, Congress can place limits on contributions. The Court ruled that Congress can impose reasonable limits on how much any one individual can provide to one particular candidate. Under current law, that is $2,600 for a federal candidate per election cycle, including both primaries and general elections, or $5,200 per year. While federal election law doesn’t limit how many candidates or campaign committees an individual can donate to, it does impose an overall aggregate limit on how much someone can give over a 2-year period: just over $48,000 in gifts to candidates and over $70,000 in donations to campaign committees or approximately $123,000 in total.
McCutcheon is not Citizens United. McCutcheon is challenging the aggregate limits proposed on individuals. The plaintiff, Shaun McCutcheon, a businessman and Republican campaign contributor from Alabama, says he wants to give more money to a wider variety of candidates and campaign committees and that federal laws limiting his ability to do so are a violation of his First Amendment rights. So, this case revolves around individual donations directly to candidates and campaign committees. In Citizens United, the Court said that the only legitimate interest Congress has in regulating campaign finance is preventing something called “quid pro quo corruption”—when an individual gives money to a candidate with the expectation that the candidate will vote a particular way on a particular issue as a result of that donation. Congress naturally would want to prevent this type of corruption—or the appearance of such corruption—and the Court has ruled that it has the power to do so. However, McCutcheon argues that an overall aggregate limit on how much he can donate has nothing to do with quid pro quo corruption and that this is prevented through the contribution limits on individual candidates. On the other hand, those in favor of aggregate contribution limits argue that it is far too easy for candidates and campaign committees to pass money between each other—transactions that are not regulated by the federal government. Thus, by lifting aggregate limits, it may be theoretically possible for a wealthy donor to give unlimited amounts of money to a particular candidate or campaign and evade the individualized limits. It also raises the question: if Congress has a legitimate interest in preventing quid pro quo corruption on the candidate level, wouldn’t they also have some interest in preventing the same quid pro quo corruption on a much larger scale encompassing entire political parties and the wealthiest contributors in the country. In the event that aggregate limits are lifted, the wealthiest donors could personally give political parties and their innumerable campaign committees exorbitant amounts of funds, giving them the influence required to shape the entire party’s agenda.
So, what will the Court decide come June? Very likely, the aggregate limits will be struck down. The Roberts Court has a consistent history of ruling in favor of free speech cases including in campaign finance. It is unlikely the Court will find that Congress has a signifiant enough interest in regulating the aggregate expenditures of wealthy political donors and will find that the interest created by the risks of quid pro quo corruption are met by current laws.
- Essentially any broadcast advertisement mentioning a candidate [↩]
- This was accomplished through the McCain-Feingold Bipartisan Campaign Reform Act of 2002, 116 Stat. 81, which amended the Federal Election Campaign Act of 1971, 2 U.S.C. §441b. [↩]
- CITIZENS UNITED, http://www.citizensunited.org/who-we-are.aspx (last visited Mar. 4, 2014). [↩]
- http://www.fec.gov/press/press2005/20050809mur.html. [↩]
- This practice of making political “films” before elections seems to be gaining traction as a way to subtly advocate for or against a certain candidate. See 2016: Obama’s America (Rocky Mountain Pictures 2012). [↩]
- Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). [↩]
- 424 U.S. 1 (1976). [↩]