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October 8, 2013

The Supreme Court's Latest Opportunity to Restore the First Amendment

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Today, the Supreme Court will hear oral arguments in a case that will give the justices another opportunity to overturn a campaign finance regulation that directly restricts the associational and free speech rights of American citizens. Hopefully, the Supremes will get it right – as the majority did in the Citizens United decision back in 2010 when they threw out an unconstitutional ban on independent political speech by corporations, unions and associations.

The issue in McCutcheon v. FEC is the aggregate limits on contributions imposed by the Federal Election Campaign Act. Federal law limits the individual contributions that can be made to $2,600 per federal candidate per election, although that limit is indexed for inflation. But there is also an aggregate limit on the total amount of contributions that an individual can give to candidates. That limit is based on the two-year federal election cycle and currently stands at $48,600.

Individuals can contribute up to $32,400 to a national party committee like the RNC or the DNC or one of their congressional committees. But there is also an aggregate limit on such contributions to non-candidate committees of $74,600.

Shaun McCutcheon is a general contractor in Alabama who runs his own business. He is a conservative who wants to help candidates and organizations who, as his brief says, share his “convictions about the proper role of government and the importance of ensuring that elected officials adhere to constitutional limitations on their authority.” During the 2011-2012 election cycle, he contributed $33,088 to congressional races, including the symbolic amount of $1,776 to each of 15 challengers trying to unseat incumbents, well below the maximum he could have contributed individually to each candidate.

McCutcheon wanted to contribute to another 12 candidates “interested in advancing the cause of liberty.” But doing so would have violated the aggregate candidate limit. So he was prevented from demonstrating his support for and associating with candidates who “share his political philosophy, and whose message he embraced.”

McCutcheon also made contributions to various non-candidate committees totaling almost $30,000. None of those contributions were earmarked in any way. In other words, those committees could use his contributions however they saw fit.  McCutcheon wanted to contribute another $25,000 each to the RNC, the NRSC, and the NRCC, well below the maximum amount that can be contributed individually to a party committee. But doing do would have violated the aggregate limit on contributions to non-candidate political committees.

These aggregate limits essentially punish Americans for being too vigorous in their advocacy. They prohibit a person from exercising his constitutional right to make a contribution to a candidate or political party that shares his ideological views just because he has already made “too many” other constitutionally-protected contributions to other candidates.

This makes no sense. In the seminal case on campaign finance restrictions, Buckley v. Valeo, the Supreme Court upheld congressionally-imposed limits on the amount that can be contributed individually to a candidate (the current $2,600) because Congress had judged (with no empirical evidence) that contributions above that amount raised the specter of corruption or the appearance of corruption.

Under that rationale, there can be no corruption or even the appearance of corruption if contributors such as Shaun McCutcheon are making individual contributions to candidates at or below the maximum amount that Congress set. It is completely unreasonable to claim that it is legitimate for McCutcheon to make contributions of $2,600 to 18 candidates, but if he contributes that amount to 19 candidates, we are suddenly in danger of encouraging corruption.

New York Times contributor Charles Fried paints a bleak picture of the future of American politics if the Supreme Court rules in favor of McCutcheon. He envisions a world in which the super-wealthy will funnel millions through a series of straw-PACs to support their anointed candidates with direct contributions. However, this  ignores the fact that the law already treats contributions to a PAC that have been earmarked in any way by the individual contributor as counting against the individual’s own $2,600 limit.

Additionally, Fried overlooks the fact that federal law prevents establishing multiple PACs in order to circumvent the base contribution limits. All contributions made by political committees “established or financed or  maintained or controlled” by the same corporation, labor union or person “including any parent, subsidiary, branch, division, department, or local unit”  are “considered to have been made by a single political committee.”

If a wealthy individual sets up a series of PACs to make contributions to candidates, all of those contributions will be considered to have been made by the same PAC and by that individual.  So Fried’s imagined corruption apocalypse disappears into thin air.

In the current political, economic and business climate, it is natural that Mr. McCutcheon would take an interest in who gets elected.  We should recognize the rights of Americans such as Shaun McCutcheon to support all candidates who share their views.

Aggregate limits are not an effective means to prevent corruption. They unconstitutionally stifle speech by limiting political communications, advocacy and association.

 - Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former member of the Federal Election Commission.

Originally published by Human Events

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