The Roberts Court has yet to meet a campaign finance law that it likes. In eight years under Chief Justice John G. Roberts Jr., the court has issued six decisions striking down provisions of federal or state campaign finance laws. And the court’s conservative majority seems set to strike down another provision of federal campaign finance law as it opens its new term this week.
At issue in McCutcheon v. Federal Election Commission [argument: Oct. 8] is a provision that limits the total amount of money an individual can give to congressional candidates or political committees in a two-year election cycle. Currently, the so-called aggregate contribution limit is set at $48,600 to candidates and $74,600 to political party committees.
Shaun McCutcheon, chief executive of an electronics engineering firm in Hoover, Ala., wanted to exceed those limits in the 2012 congressional elections. He planned to donate the symbolic amount of $1,776 to 27 congressional candidates who shared his interest in limiting government and to give another $25,000 to each of the three national Republican political committees. But his plan ran afoul of the overall contribution limits, which date back to the post-Watergate Federal Election Campaign Amendments of 1976.
McCutcheon has teamed up with the Republican National Committee (RNC) in a federal court suit in Washington challenging the limits as an infringement of his political speech rights. He says he has no problem with the so-called base limits on the amount an individual can give to any individual candidate currently, $2,600 in a primary election and another $2,600 in the general election. But he says it makes no sense to allow him to write checks to 17 congressional candidates and then to draw a line at the eighteenth.
A three-judge court headed by one of the D.C. Circuit’s staunchest conservatives, Janice Rogers Brown, nevertheless upheld the provision. Brown noted in the decision that the Supreme Court upheld contribution limits in its seminal case, Buckley v. Valeo (1976), on the ground that they helped prevent corruption or the appearance of corruption. The aggregate contribution limits, Brown reasoned for the unanimous panel, help prevent circumvention of the base limits. Without the aggregate limits, she explained, an individual could write a half-million dollar check to a joint fundraising committee and the party committees could then funnel the money through untraceable informal arrangements to a single candidate just as the donor intended. Up till now, the Supreme Court has stuck with its decision in Buckley to strike down limits on individual campaign spending but to uphold contribution limits. But conservative critics are more and more forthright these days in attacking the contribution limits as unconstitutional. In the current case, McCutcheon is asking only to strike down aggregate limits, but the RNC wants the court to reconsider Buckley and subject all contribution limits to likely fatal strict scrutiny.
Three justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas have written in other cases that they are open to reconsidering that aspect of Buckley. Roberts and Justice Samuel A. Alito Jr. have yet to express view on the issue, but the court’s campaign finance decisions have gone in only one direction since Roberts and Alito joined the court in the 2005-2006 term.
Before Roberts, the court in 2003 upheld the Bipartisan Campaign Reform Act (BCRA) by a 5-4 vote, with Alito’s predecessor, Sandra Day O’Connor, joining the court’s liberal bloc in the majority. In their first full term on the court, however, Roberts and Alito provided the critical votes in a decision that gutted the BCRA provision limiting so-called corporate-financed issue ads on television during campaign seasons (FEC v. Wisconsin Right to Life, 2007).
The same 5-4 majority formed in 2008 to strike down BCRA’s so-called “millionaire’s amendment” (Davis v. FEC) and in 2010 to throw out limits on campaign spending by corporations and labor unions (Citizens United v. FEC). The Roberts Court has also thrown out Vermont’s low campaign contribution limits (Randall v. Sorrell, 2006) and an Arizona law aimed at helping publicly financed candidates running against self-financed opponents (Arizona Free Enterprise Club v. Bennett, 2011). And last year the court struck down Montana’s attempt to re-enact limits on corporate spending in the face of the Citizens United ruling (American Tradition Partnership v. Bullock, 2012).
Federal or state laws start with a presumption of constitutionality, but Supreme Court handicappers appear to be unanimous in predicting that the court will strike down the aggregate limits. The government cites the Watergate scandals to justify the limits; the brief recalls the dairy industry’s seven-figure contribution to the Nixon re-election committee in a blatant (and successful) effort to get Nixon to back an increase in milk price supports.
Without the aggregate limits, the government argues, an individual could contribute $3 million or more in a single election cycle and the country would return to the bad old days. Bradley Smith, a leading critic of campaign finance law as former FEC chair and law professor at Capital University Law School in Columbus, Ohio, scoffs. “A zombie apocalypse,” he calls it, as quoted in USA Today.
In Citizens United, the Roberts Court majority made clear it has no qualms about setting corporations free to spend freely on political campaigns. All signs suggest those five justices are likely to have no qualms about unleashing McCutcheon and other well-heeled contributors as well.