SCOTUS Agrees to Hear McCutcheon v. FEC: Free Speech Update

James Earle Fraser's statue The Authority of Law, which sits on the west side of the United States Supreme Court building, on the south side of the main entrance stairs.

Our friends at Outside the Beltway clipped a Washington Post story that sets up a new look at decades-old campaign finance law by the nation’s high court, just three years after their landmark decision in Citizens United v. FEC. Washington’s paper of record reports:

The Supreme Court reentered the controversial field of campaign finance Tuesday, agreeing to consider a Republican challenge to decades-old limits on the total amount a person can contribute to candidates, political parties and political action committees.

It is the court’s first major campaign finance case since its 2010 decision in Citizens United v. Federal Election Commission, which allowed unlimited corporate and union spending in elections. By extension, the decision led to the creation of super PACs, whose multimillion-dollar donations transformed funding of the 2012 presidential contest.

The new case, which will be heard in the court’s term that begins in October, concerns the federal limit on the amount an individual can contribute to certain campaigns during each election cycle.

For 2013-14, that would be $123,200 — a maximum of $48,600 to federal candidates and $74,600 to political parties and some political action committees.

Shaun McCutcheon, an Alabama conservative activist and businessman, brought the lawsuit along with the Republican National Committee because he is seeking to contribute more than those amounts. He is not challenging the limit on the amount he can give to individual candidates, $2,600.

A three-judge lower-court panel rejected McCutcheon’s contention that the aggregate limits were unconstitutionally low and overbroad. “It is not the judicial role to parse legislative judgment about what limits to impose,” the panel wrote.

As a matter of pure serendipity, I spoke recently with counsel who has been involved with (or, at any rate, who has tracked) this case. I am not an attorney, or an expert on campaign finance law, but from what I parsed from our conversation, the plaintiff’s argument will essentially take this shape:

  • Citizens United struck down restrictions on independent political expenditures by corporations (or, if you prefer, by people who freely associate with each other under a corporate banner/structure) on First Amendment grounds, arguing that funding of political speech and communications is essential to speaking and communicating politically.
  • If people have a right to make unlimited independent political expenditures, then the line drawn between what constitutes an independent expenditure and a direct contribution seems sort of arbitrary, and fails any kind of strict scrutiny test measuring whether or not the disctinction helps prevent corruption of public officials, in that the current law can’t possibly be narrowly tailored (since nobody knows which marginal contribution dollar flips an official from chastity to corruption), and that contribution limits aren’t the least restrictive means to achieve the government’s compelling interest in preventing corruption.
  • Therefore, the Court should rule favorably for the plaintiff.

My friend Brad Smith, former FEC commissioner and chairman of the Center for Competitive Politics, previewed some cases for the Wall Street Journal last week. Here’s what he had to say about McCutcheon:

The 2003 McCain-Feingold Campaign Reform Act capped the amounts that national political parties can accept in contributions from any one person. The act also made it almost impossible for state and local parties to assist candidates for federal office. The result? More and more political money has gone to “social welfare” groups such as Planned Parenthood, trade groups such as the National Association of Realtors, or Super PACS such as the Pro-Obama Priorities USA Action (Super PACS can accept contributions from any source and make unlimited expenditures but not contribute directly to parties or candidates.) But why should political parties be subject to restrictions that other groups of people trying to elect candidates are not?

In McCutcheon v. FEC, plaintiffs Shaun McCutcheon and the Republican National Committee argue that McCain-Feingold’s limits on giving to national political parties, and the overall limit on how much an individual can contribute to all political committees and campaigns (now $123,200), are unconstitutional. If the plaintiffs prevail, political parties would be better able to compete with Super PACS for campaign dollars, and large donors could contribute more to parties when they prefer to do so.

In addition to the caps on giving to political parties and the overall contribution cap, McCain-Feingold also limits total giving to candidate committees to $48,600. That means that an individual may contribute only the legal maximum of $2,600 to just 18 candidates.

As a general reminder, McCain-Feingold belongs in the dustbin of history’s most monstrous ideas.

Be sure to click over to the WSJ and read Brad’s full piece to prepare yourself for a rollercoaster of what could be sea changes in campaign finance law. (And be sure to delight in the progressive blogosphere soiling themselves over SCOTUS’s decision to hear McCutcheon.)


At the time of publication this article stated erroneously that McCutcheon would challenge “decades-old” campaign finance law, a reference to the Federal Election Campaign Act of 1971. However, as the Center for Competitive Politics chairman notes in his Wall Street Journal editorial linked and excerpted above, the plaintiffs in McCutcheon are challenging contribution limits enacted in the Bipartisan Campaign Reform Act of 2002 (“McCain-Feingold”). We regret the oversight and have updated the piece accordingly.

Image via Wikimedia Commons.

The views and opinions expressed by individual authors are not necessarily those of other authors, advertisers, developers or editors at United Liberty.