Wednesday the United States Supreme Court struck down a federal law limiting how much money a citizen may give to political recipients during elections in a major First Amendment decision. The Court’s five-to-four decision in McCutcheon v. FEC removes a limit on political speech Congress first imposed in 1971, one upheld by the Supreme Court in 1976.
Current campaign finance laws include both specific limits to how much money can be given to specific recipients and aggregate limits on how much any citizen can give to all political committees combined during each two-year election cycle. For example, citizens can give a “base limit” of $5,200 to a candidate for House, Senate, or president, but no more than $48,600 total can be directed to specific candidates. There is also a separate limit covering national political parties and political action committees, or “PACs.”
This system of aggregate limits began in 1971 and had been updated several times before it was overhauled by the Bipartisan Campaign Reform Act of 2002 (BCRA, also called McCain-Feingold). The Supreme Court decided to reevaluate this system under the new legal framework, one that includes more targeting of various types of contributions and makes it much more difficult to circumvent base limits.
Shaun McCutcheon gave $33,088 in the last election cycle. He wanted to give contributions of $1,776 to a number of other candidates as well but could not because of the aggregate limit. Wednesday the Court agreed this limit violates his First Amendment rights in this case, in which the Republican National Committee was a co-plaintiff.
Writing the controlling opinion for a four-justice plurality, Chief Justice John Roberts wrote, “There is no right more basic in our democracy than the right to participate in electing our political leaders.”
The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.
Many Americans support limiting campaign money, often arguing it sullies democracy. Roberts responded, “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades – despite the profound offense such spectacles cause – it surely protects political campaign speech despite popular opposition.”
This is especially true for elections. The Supreme Court in 1971 held that “the First Amendment has its fullest and most urgent application precisely to the conduct of campaigns for political office.”
Roberts explained that the line drawn by the Free Speech Clause only permits contributions to be targeted that result in the “exchange of an official act for money… dollars for political favors. Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government into the debate over who should govern. And those who govern should be the last people to help decide who should govern.”
In its watershed 1976 case Buckley v. Valeo, “the Court concluded that contribution limits impose a lesser restraint on political speech because they permit the symbolic expression of support evidenced by a contribution but do not in any way infringe the contributor’s freedom to discuss candidates and issues.”
Buckley upheld an early aggregate limit, which was only $25,000 at that time, but Roberts noted it barely touched upon the issue in its 139-page opinion. The justices never explored several constitutional concerns implicated by these limits, so Roberts wrote that the 1976 opinion “provides some guidance” but reasoned that “this case cannot be resolved merely by pointing to three sentences in Buckley that were written without the benefit of full briefing or argument on the issue.”
Roberts noted that under these limits, donors could not give to all the political candidates they support. “The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse,” Roberts reasoned. “We conclude… that the aggregate limits do little, if anything, to address that [corruption] concern, while seriously restricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment.”
Justice Clarence Thomas supplied the decisive fifth vote to strike down the limits, but declined to join Roberts’s opinion. “I adhere to the view that this Court’s decision in Buckley v. Valeo denigrates core First Amendment speech and should be overruled,” Thomas wrote separately, concurring in the Court’s judgment. He added, “Political speech is the primary object of First Amendment protection and the lifeblood of a self-governing people.”
Thomas has long been a critic of how the Supreme Court has decided campaign finance cases, often joined by Antonin Scalia and sometimes by Anthony Kennedy. “In sum, what remains of Buckley is a rule without a rationale,” Thomas wrote. “Contributions and expenditures are simply two sides of the same First Amendment coin, and our efforts to distinguish between the two have produced mere word games rather than any cognizable principle of constitutional law.”
Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Aggregate limits are acceptable because of “the public’s interest” in “collective speech,” Breyer wrote.
Roberts’s opinion rejected this concept for several reasons: “The whole point of the First Amendment is to afford individuals protection against… infringements. The First Amendment does not protect the government, even when the government purports to act through legislation reflecting ‘collective speech.'”
As Roberts concluded:
The Government has a strong interest, no less critical to our democratic system, in combatting corruption or its appearance. We have, however, held that this interest must be limited to a specific kind of corruption – quid pro quo corruption – in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.