By Michael Fullilove |
The Supreme Court's Citizens United ruling in 2010 delivered a wallop that left federal campaign finance regulations reeling, but McCutcheon v. Federal Election Commission threatens to land the knockout blow. Throughout the nearly four decades since its decision in Buckley v. Valeo, the court has consistently recognized a key distinction between contributions made directly to candidates' campaigns or party committees and independent expenditures that are not coordinated with a campaign.
Contributions can be limited to prevent corruption (or the appearance thereof), but the First Amendment's free speech guarantee bars regulating what an individual can spend to communicate effectively on his or her own behalf. Now is not the time to abandon that distinction.
One of the shreds of regulation that remains post-Citizens United is the limitation on the amount an individual may contribute directly to candidates or political party committees. Congress enacted the Bipartisan Campaign Reform Act in 2002, increasing the allowable contribution limits from those set in 1974 and indexing them for inflation each election cycle. For 2013-14, an individual donor may contribute up to $2,600 to any individual candidate and up to $32,400 to a national party committee but may not spend more than $123,200 overall. The amounts were slightly lower in 2012, when according to the Center for Responsive Politics, approximately 2,000 donors maxed out. Shaun McCutcheon was one of them, and he and the Republican National Committee filed suit, asserting that his free speech rights were being curtailed.
McCutcheon and the RNC point out that they are only challenging the aggregate limit, not the restriction on how much donors may contribute to each individual candidate, known as the "base limit." This may appear less radical than a frontal assault on the base limit, but the effect would be similar because parties can direct contributions they receive to whichever candidates they choose through joint fundraising committees.
If the court buys McCutcheon's argument, does anyone doubt that challenging the base limits would be the next logical step? This case could be the "camel's nose under the tent." McCutcheon says he doesn't understand why he can contribute to 17 candidates but not 18; might he also wonder why he can contribute $2,600 but not $2,650?
Why would donors prefer to make direct contributions when they can already buy their own ads or donate unlimited amounts to Super PACs (which have to disclose their donors) or 501(c)4 groups (which don't, and can in turn funnel money into Super PACs)? If McCutcheon wants to amplify his voice in exercising his free speech rights, why not donate to one of the many outside groups that collectively spent more than $1 billion in the 2012 cycle?
Simple: Direct contributions yield more bang for the buck. The ad rates for candidates are significantly lower than those for outside groups. McCutcheon is a successful businessman in Alabama and no doubt concerned about value, but is his understandable desire to maximize his spending worth the risk of allowing unlimited torrents of cash to flow directly into the electoral system and create at least the appearance of a quid pro quo? The Court in 1976 answered no: "[T]he weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms."
After hailing Citizens United, the RNC now worries that outside groups' independent expenditures threaten to eclipse individual contributions. Even worse, "uncoordinated" messages from less accountable groups may drown out the presumably more responsible candidates and parties. The argument is that the poor candidate or party doesn't stand a chance at controlling the campaign unless the aggregate limit is scrapped, a sudden realization that seems rather disingenuous. If the base limits were left untouched, a donor could contribute the maximum base amount to every single federal candidate in one party, or about $2 million.
Citizens United allowed outside groups such as corporations, unions and SuperPACs to make independent expenditures from their treasuries, but stopped short of allowing them to contribute directly to campaigns except in very limited amounts via their political action committees. The same logic should continue to apply to contributions from individuals.
About Susan Lagon Senior Fellow at the Government Affairs Institute at Georgetown University
Liz Kennedy Counsel at Demos
Blair Bowie Democracy Advocate at the U.S. Public Interest Research Group
Lawrence Norden Deputy Director of the Democracy Program at the Brennan Center for Justice at New York University
Hans A. Von Spakovsky Senior Legal Fellow at the Heritage Foundation
Rick Esenberg President and General Counsel of the Wisconsin Institute for Law and Liberty