Upon Further Review

A Publication of the Philadelphia Bar Association

Home > Constitutional Law

Print | | Share Stumble Upon Facebook Delicious Digg Reddit Google

McCutcheon v. FEC: The Effect on Campaign Finance

Lane Schiff, Esq. on 4/16/2014

About The Author

Mr. Schiff is an Associate at the Law Office of Faye Riva Cohen, P.C and practice in the areas of Labor, Employment, Disability, and Civil Rights Law

Contact Lane Schiff, Esq.

More by
Lane Schiff, Esq. »

Article Image The Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA) imposes two types of limits on campaign contributions: (1) base limits, which restrict how much money a donor may contribute to a particular candidate or committee, and (2) aggregate limits, which limit the total amount of money a donor may contribute to all candidates and/or committees. For the 2013-2014 election cycle, BCRA capped individual contributions to candidates at $2,600 in each the primary and general election. Individuals were additionally prevented from donating more than $32,400 to a national party committee, $10,000 to a local party committee, and $5,000 to a political action committee. For the 2013-2014 election cycle, the law further capped aggregate contributions to federal candidates and political committees at $123,200. Specifically, individuals could not contribute more than $48,600 to federal candidates and $74,600 to other political committees.

During the 2011-2012 election cycle, Sean McCutcheon, a businessman from Alabama, contributed to sixteen different federal candidates. He would have preferred to keep donating to additional candidates and political action committees, but BCRA prevented him from doing so. As a result, he challenged the constitutionality of the Act´s aggregate limits. McCutcheon, et al v. Federal Election Commission eventually made its way to the Supreme Court, resulting in its most recent headline-grabbing ruling.

Campaign finance law is generally dependent on the distinction between expenditure limitations and contribution limitations. Independent expenditures consist of money spent by an individual on a political cause, independent of a candidate or party. A contribution, however, is money that an individual specifically gives to a candidate or committee. Since both implicate First Amendment interests, a reviewing court is to afford each a heightened level of scrutiny. In Buckley v. Valeo, the Supreme Court ruled that limits on expenditures would be subjected to "the exacting scrutiny applicable to limitations on core First Amendment rights of political expression." Limits on contributions would, similarly, be sustained only if the government "demonstrates a sufficiently important interest" that is "closely drawn to avoid unnecessary abridgement of associational freedoms."

However, in McCutcheon, the Court reasoned that there was no need to determine which level of scrutiny applied, as the prohibition on aggregate limits was unconstitutional even under the "closely drawn" test. In reaching its determination, the Court recognized that it "has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption." Congress may further only target "quid pro quo" corruption, which is the spending of large amounts of money "in connection with an effort to control the exercise of an officeholder’s official duties."

The Court concluded that limits on aggregate spending do not serve to further the government´s lone interest. Once the aggregate amount is reached, BCRA effectively "ban[s] all contributions of any amount." The Court found this to be especially problematic because Congress’s enactment of a $5,200 base limit shows that it believes "contributions of that amount or less do not create a cognizable risk of corruption." Thus, the government could only defend the constitutionality of the aggregate limitations "by demonstrating that they prevent circumvention of the base limits." For this to be the case, individuals would have to contribute large sums of money to specific candidates through donations to different entities who are likely to support that candidate. The Court determined that this fear was "far too speculative" and therefore failed First Amendment scrutiny.

The Court further concluded that the aggregate limits violate the First Amendment "because they are not `closely drawn to avoid unnecessary abridgment of associational freedoms.´" The potential harmful effects of a blanket ban on every contribution above the aggregate limit outweigh the benefits of the government´s stated legitimate interest in preventing circumvention. The majority of contributions made in excess of the aggregate limits are not likely to be rerouted to candidates, the Court reasoned, but rather used by their recipients. To that end, the Court suggested numerous alternative methods that Congress could enact, which would both serve the Government´s interest in preventing circumvention and avoid the "unnecessary abridgment" of First Amendment freedoms.

Therefore, the Court concluded that the "aggregate limits on contributions do not further" the government´s interest but instead unjustifiably "intrude on a citizen’s ability to exercise" his fundamental First Amendment rights. Thus, while individual donors are still limited in the amount of money they can donate to a specific candidate or committee, they can now contribute to as many candidates and committees as they choose.

Print | | Share Stumble Upon Facebook Delicious Digg Reddit Google

Add Comment

Newsletter Sign Up

Get the latest info delivered right to your inbox. Enter your email address below to subscribe.

Become a Contributor

You can submit your own articles to be considered for publication on Upon Further Review. LEARN MORE