Both Sides Cry ‘Free Speech’ As Supreme Court Lifts Campaign-Finance Limits


Daniel Fisher

April 2, 2014

Both sides wrapped themselves in the First Amendment today as the conservative majority on the U.S. Supreme Court struck down aggregate campaign-contribution limits in McCutcheon v. Federal Election Commission, and dissenters bemoaned the elimination of one more restriction on campaign spending.

In a decision that is sure to be as fiercely attacked — and as little understood — as 2010’s Citizens United v. FEC, the high court upheld contribution limits of $2,600 to individual candidates ($5,200 over a two-year election cycle) and $5,000 to party committees, but freed donors to apply that money to as many candidates as they want. McCutcheon also allows donors to contribute to more party committees and may help challengers raise money to try and dislodge incumbents.

The essential divide between the majority and the dissenters was over individual rights. Chief Justice John Roberts viewed the federal law that effectively prevented donors from giving the maximum to more than 10 candidates as an unconstitutional restriction on their right to get involved in politics. His decision focused on the individual’s First Amendment right of free expression as opposed to the public’s right to enact laws designed to limit influence in politics.

“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,” Roberts wrote, in a decision joined by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas. (Thomas, in a concurrence, would have gone further and subjected all contribution limits to the same strict scrutiny as other forms of expression.)

The dissent, led by Justice Stephen Breyer, said Roberts was undermining the First Amendment by allowing rich individuals pour even more money into political campaigns, drowning out the voices of the less affluent majority. By his calculations, one person could give $3.6 million to House and Senate candidates and party committees without running afoul of the law, compared with a previous aggregate limit of $123,200.

“Today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve,” said Breyer, who was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. “Where enough money calls the tune, the general public will not be heard.”

Public Citizen decried the decision as a “devastating blow to our democracy,” cementing “plutocrat rights” for heavy-hitting contributors like Charles and David Koch.

“No matter what five Supreme Court justices say, the First Amendment was never intended to provide a giant megaphone for the wealthiest to use to shout down the rest of us,” the group said.

The decision doesn’t upset the fundamental regulatory scheme Congress has set up to limit how much money an individual can give to each candidate or political party. It only lifted the restriction on aggregate contributions, which the court held arbitrarily restricts participation in politics. The court’s 2006 decision upholding a ban on direct corporate contributions to candidates is also untouched.

“To require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process,” Roberts wrote. He downplayed the dissent’s concerns that an individual could now give as much as $3.6 million in a two-year election cycle and that money could be funneled to individual candidates, saying a web of federal laws prevents such movements of cash.

One major effect of the ruling will be to lift the amount of money party committees can raise. Under the old limits, those committees “were in competition with each other” because individuals could only make the maximum contribution of $32,400 to two committees, said Bobby Burchfield, a partner with McDermott Will and Emery who argued before the court for challenger Sen. Mitch McConnell, R-Kentucky. He said it could also help challengers to long-entrenched incumbents because donors will be less inclined to concentrate their bets.