McCutcheon v. Federal Election Commission

McCutcheon v. Federal Election Commission
Reference: 12-536
Issue: Campaign finance
Term: 2013
Important Dates
Argued: October 8, 2013 Decided: April 2, 2014
Outcome
United States District Court for the District of Columbia reversed and remanded
Majority
Chief Justice John G. Roberts • Antonin Scalia • Anthony Kennedy • Samuel Alito
Concurring
Clarence Thomas
Dissenting
Ruth Bader Ginsburg • Stephen Breyer • Sonia Sotomayor • Elena Kagan

McCutcheon v. Federal Election Commission is a case argued during the October 2013 term of the U.S. Supreme Court. It involved a challenge to federal campaign contribution regulations that placed biennial limits on contributions in a two-year cycle allowed. Argument in the case was held on October 8, 2013. The case came to the court after the court noted probable jurisdiction, the most common avenue to review panel decisions of a U.S. district court. The judgment under review was from a decision of the United States District Court for the District of Columbia. On April 2, 2014, the court reversed and remanded the district court's judgment. In his opinion, Chief Justice John Roberts was unconvinced that the government's asserted interest in establishing an aggregate limit on contributions—corruption, or the appearance of corruption—was sufficient to overcome the First Amendment implications in the case.

The Bipartisan Campaign Reform Act of 2002 (BCRA), which amended the Federal Election Campaign Act of 1971 (FECA), imposed two types of limits on campaign contributions: limits on how much a contributor may donate to a specific candidate or political committee and an aggregate limit on the total amount a contributor may donate in a two-year campaign cycle to all federal candidates and political committees. In the 2011-2012 election cycle, the aggregate limit was $123,200. The petitioner, Shaun McCutcheon, argued that the aggregate limit prevented him from donating to as many candidates and political committees as we wanted, even if he donated merely the base limit ($2,600 per candidate, per election, $32,400 to a national party committee in a calendar year, and $5,000 per calendar year to any political action committee), and that these limits violated his right to free speech. The United States District Court for the District of Columbia held that the limits were not subject to strict scrutiny and, consistent with the Supreme Court's ruling in Buckley v. Valeo, held that "ceilings on contributions do not really restrain political speech, but only limit donors’ association with those of like political preferences, leaving them free to pursue those associations in other ways."^[2] The Supreme Court noted probable jurisdiction on February 19, 2013, and argument before the court was held on October 8, 2013. On April 2, 2014, the court reversed and remanded the judgment of the United States District Court for the District of Columbia.

Case

Background

The Federal Election Campaign Act (1971), amended by the Bipartisan Campaign Reform Act (2002), established two types of campaign contribution limits. Donors were limited in the amount they could contribute to individual candidates or political committees, and a biennial aggregate cap was imposed on the total amount donors could contribute over a two-year cycle.^[4]

In its 1976 decision in Buckley v. Valeo, the U.S. Supreme Court upheld the constitutionality of contribution limits for individuals, but overturned expenditure limits on First Amendment grounds. After this decision, individuals were restricted in the amount they could contribute to individual candidates and to express advocacy efforts (campaign ads with "for" and "against" statements). Individuals were not, however, restricted in their expenditures independent of candidates in order to engage in issue advocacy (political ads focused on "broad political issues rather than specific candidates.")^[5][6]

Shaun McCutcheon, an Alabama businessman, filed a suit against the Federal Election Commission because of his desire to make campaign contributions beyond what the biennial limit on contributions in a two-year cycle allowed. He was later joined in the suit by the Republican National Committee, which wished to receive more contributions than were allowed under the limits at the time.^[7] Before the McCutcheon decision, individuals were limited to contributing $123,200 to candidates, national party committees and political committees, including a $48,600 total limit on what individuals could give to candidates. Moreover, individuals could only contribute $2,600 to an individual candidate, meaning that an individual contributor would "max out at 18 federal candidates per cycle."^[7]

Petitioner's challenge

The petitioners challenged the holding that strict scrutiny was not applicable and that the aggregate contribution limits did not violate rights of free speech and political speech protected under the First Amendment.

Arguments

Questions presented

Audio

• Audio of oral argument:^[9]
  

Transcript

• Transcript of oral argument:^[10]

Highlights from oral argument

Petitioners' argument

Erin Murphy argued the case for petitioners, Shaun McCutcheon et al.

1. Who would be affected by the limits?

Justice Ruth Bader Ginsburg questioned Murphy as to just whose speech would be hindered by the FEC limits:

Ginsburg	“ Ms. Murphy, on the "everyone else," can you give us an idea of whose expression is at stake? I mean, most people couldn't come even near the limit. So what percentage -- is there any information on what percentage of all contributors are able to contribute over the aggregate?[11] ”
Murphy	“ I don't have a percentage on how many are able. I mean, we aren't talking about a large number of individuals. We certainly are talking about more individuals than whose First Amendment rights were implicated by the provision at issue in Davis, for example.[11] ”
Scalia	“ I assume that a law that only -- only prohibits the speech of 2 percent of the country is okay.[11] ”
Murphy
Scalia

2. The effect of aggregate limits on giving minimum amounts

Chief Justice Roberts inquired about the effect that aggregate limits had on an individual's ability to donate the minimum amount to as many candidates as they desired:

Roberts	“ Ms. Murphy, we haven't talked yet about the effect of the aggregate limits on the ability of donors to give the minimum amount to as many candidates as they want. The effect of the aggregate limits is to limit someone's contribution of the maximum amount to about 9 candidates, right?[11] ”
Murphy	“ That's right. If you're talking about a general --[11] ”
Roberts	“ Is there a way to eliminate that aspect while retaining some of the aggregate limits? In other words, is that a necessary consequence of any way you have aggregate limits? Or are there alternative ways of enforcing the aggregate limitation that don't have that consequence?[11] ”
Murphy	“ Well, it's certainly a necessary consequence of BCRA's scheme in which there's a distinct aggregate limit on contributions to candidates alone. I think, though, aggregate limits in general are always going to have this effect of prohibiting people from giving contributions that don't themselves give rise to quid pro quo corruption concerns. And that's why if the government is really concerned about the things it's talking about, there are narrower avenues to get at them.[11] ”

Amicus curiae's argument

Bobby Burchfield argued the case for U.S. Sen. Mitch McConnell (R-Ky.), participating as an amicus curiae.

1. The limits on expression

Justice Ginsburg questioned amici's counsel as to whether the speech restrictions really hindered the speech of the "super-affluent":

Burchfield	“ Senator McConnell agrees that this aggregate limit does not pass exacting scrutiny. Senator McConnell believes that all restrictions of this nature should be reviewed under strict scrutiny. To begin with, this is a severe restriction on political speech.[11] ”
Ginsburg	“ Mr. Burchfield, I'd like you to address this question about the restriction on speech. It has been argued that these limits promote expression, promote democratic participation, because what they require the candidate to do is, instead of concentrating fundraising on the super-affluent, the candidate would then have to try to raise money more broadly in the electorate. So that by having these limits you are promoting democratic participation, then the little people will count some, and you won't have the super-affluent as the speakers that will control the elections.[11] ”
Burchfield	“ Your Honor, I disagree with that, for this reason. First of all, this limit, the aggregate limit on political parties, places like-minded political parties in the position of competing against each other rather than collaborating against each other. All the national political parties on the Republican side and the State political parties compete against each other for an artificially limited pool of money from each contributor. The same is true on the candidate side. They compete against each other for the same artificially limited pool of money, even though each individual contribution to the candidate or to the party is limited by the base limits. The Federal Election Commission regulations -- and Justice Breyer, I would --I would propose that you look at Section 110.1(h), which specifically -- which specifically prohibits a PAC of the nature you describe. If a person contributes to a PAC with knowledge his contribution is going to a particular candidate, that is an earmark under the -- under the precedents of the Federal Election Commission.[11] ”

2. The impact on McCutcheon specifically

Justices Ginsburg and Kagan questioned Burchfield as to the particular effects on McCutcheon specifically:

Burchfield	“ Mr. McCutcheon ... wants to write checks directly to the candidates and directly to the committees. He is constrained by the aggregate limit.[11] ”
Ginsburg	“ But he can -- he can write checks to everyone that he wants to write checks to. It's just he can't give his special number of 1776.[11] ”
Burchfield	“ If -- if he wanted to give a contribution to every candidate running for a Federal congressional seat, congressional and Senate, he would be limited to $86 or some number like that.[11] ”
Ginsburg	“ In his own case, it would be something over $1,000, right? Because he identified 12 more candidates that he'd like to give 1776 to. But he could give each of them over $1,000.[11] ”
Burchfield	“ Your Honor, he could. But again, you're -- you're diminishing his right to associate and the intensity of his association by applying this aggregate limit.[11] ”
Kagan	“ Mr. Burchfield, if you take off the aggregate limits, people will be allowed, if you put together the national committees and all the State committees and all the candidates in the House and the Senate, it comes to over $3.5 million. So I can write checks totalling $3.5 million to the Republican Party committees and all its candidates or to the Democratic Party committees and all its committees even before I start writing checks to independent PACs. Now, having written a check for 3.5 or so million dollars to a single party's candidates, are you suggesting that that party and the members of that party are not going to owe me anything, that I won't get any special treatment? Because I thought that that was exactly what we said in McConnell, that when we talked about soft money restrictions, we understood that you give $3.5 million, you get a very, very special place at the table. So this is effectively to -- to reintroduce the soft money scheme of McConnell, isn't it?[11] ”
Burchfield	“ No. No, Your Honor, it is absolutely not, because McConnell dealt with the situations where there were -- you were not considering the base limits. The soft money by definition was not subject to the base limits. To take your example of the joint fundraising committee, the joint fundraising regulation, which consumes more than three pages in the -- in the Federal Code of Federal Regulations -- it's at 102.17(c) -- it specifically reaffirms the base limits. It specifically reaffirms the anti-earmarking restriction, and it says that the joint fundraising committee must inform all contributors of those restrictions. So, again, it's the situation where the money leaves the contributor's hands, he loses control over it, and the person who receives it makes the direction.[11] ”
Kagan	“ But the money -- the money goes to a single party. And indeed, I could make this even worse. I could say, let's say the Speaker of the House or the Majority Leader of the House solicits this money from particular people. So solicits somebody to ante up his $3.6 million. And then, you know, Justice Kennedy said in McConnell the making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment. So the Speaker, the Majority Leader, can solicit $3.6 million to all the party members and you're telling me there's just no special influence that goes along with that?[11] ”
Burchfield	“ Well, we know from the Citizens United decision, Your Honor, that gratitude and influence are not considered to be quid pro quo corruption. So I think that's what you're talking about. That is not the sort of corruption that would sustain this limit, especially in light of the severe restrictions on speech and association that it imposes as the political parties compete against each other and as they -- and as -- as the candidates have to compete against each other.[11] ”

Respondent's argument

United States Solicitor General Donald Verrilli argued the case for the respondent, the Federal Election Commission.

1. Why set limits on amounts that don't constitute corruption?

Chief Justice Roberts questioned the government's counsel as to the potential dangers of modifying or removing the aggregation limits so that an individual can give non-corruptible amounts to as many candidates as they wished:

Roberts	“ Is the possibility of prohibiting those transfers perhaps a way of protecting against that corruption appearance while at the same time allowing an individual to contribute to however many House candidates he wants to contribute to? I mean, the concern is you have somebody who is very interested, say, in environmental regulation, and very interested in gun control. The current system, the way the anti-aggregation system works, is he's got to choose. Is he going to express his belief in environmental regulation by donating to more than nine people there? Or is he going to choose the gun control issue?[11] ”
Verrilli	“ So, Mr. Chief Justice, I want to make two different points in response to that question. The first is that restricting transfers would have a bearing on the circumvention problems. It wouldn't eliminate all circumvention risk, but would have a bearing on that problem. But there is a more fundamental problem here. It's a problem analogous to the one that was at issue with soft money in McConnell, which is the very fact of delivering the $3.6 million check to the whoever it is, the Speaker of the House, the Senate Majority Leader, whoever it is who solicits that check, the very fact of delivering that check creates the inherent opportunity for quid pro quo corruption, exactly the kind of risk that the Court identified in Buckley, wholly apart from where that money goes after it's delivered. But the delivery of it --[11] ”
Roberts	“ What is the framework -- what is the framework for analyzing -- I agree with you on the aggregation, but it has this consequence with respect to limiting how many candidates an individual can support within the limits that Congress has said don't present any danger of corruption? So what is the framework for analyzing that? Give you your argument with respect to the transfers and the appearance there, but it does havethat other consequence on something we've recognized as a significant right. So --[11] ”
Verrilli	“ Let me make a specific point about that and then work into the framework. The specific point is this: The aggregate limit would have the effect of restricting the ability of a contributor to make the maximum contribution to more than a certain number of candidates. That's true. We can't help but acknowledge that. It's math. But that doesn't mean that that individual cannot spend as much as the individual wants on independent expenditures to try to advance the interest of those candidates or the interests or the causes that those candidates stand for. Mr. McCutcheon, for example, can spend as much of his considerable fortune as he wants on independent expenditure advocating the election of these candidates.[11] ”

2. The First Amendment issue

Justices Breyer and Kennedy asked questions about the "serious question" related to the issues i this case:

Breyer	“ That actually does very much -- while I don't -- I'm looking for an answer here. It's not that I have one at all. It is rather basic, the point I think that's being made now. I mean, as I understand it, the whole reason -- it is no doubt that campaign limits take an ordinary person and they say: You cannot give more than such-and-such an amount. There are apparently, from the Internet, 200 people in the United States who would like to give $117,000 or more. We're telling them: You can't; you can't support your beliefs. That is a First Amendment negative. But that tends to be justified on the other side by the First Amendment positive, because if the average person thinks that what he says exercising his First Amendment rights just can't have an impact through public opinion upon his representative, he says: What is the point of the First Amendment? And that's a First Amendment point. All right. So that's basic, I think. Now, once that's so, Congress has leeway. And you are saying, and I have seen all over the place, that that's why we don't want those 200 people to spend more than 117- or 120,000 because the average person thinks the election is -- after the election all the actions are affected by the pocketbook and not by the merits of the First Amendment arguments. Okay. And now you say the person can do the same thing anyway; just call it independent. And what independent does, he can spend 40 million. He can spend 50 million. And all that does is sort of mix up the messages because the parties can't control it. Now, that's, I think, the question that's being asked. And I think that that is a very serious question, and I'd like to know what flows from it. Is it true? So what? What are we supposed to do? What is your opinion about that question?[11] ”
Kennedy	“ And I have the same question. You have two -- two persons. One person gives an amount to a candidate that's limited. The other takes out ads, uncoordinated, just all on his own, costing $500,000. Don't you think that second person has more access to the candidate who's -- when the candidate is successful, than the first? I think that was at the root of Justice Scalia's question and Justice Breyer's.[11] ”
Verrilli	“ Let me try to answer this with an analogy, if I could, Justice Kennedy. I think the right way to think about it is this: If somebody thinks the Secretary of Defense is doing a great job, they can take out an ad in the Washington Post, spend $500,000 on that ad saying: The Secretary of Defense has done a great job. And -- and they would have an undoubted First Amendment right to do that. No one could think that there's a content -- it's hard to imagine a content-neutral justification for prohibiting that speech.[11] ”
Verrilli	“ but if, instead, somebody wanted to express symbolically their view that the Secretary of Defense has done a great job by giving the Secretary of Defense a Maserati, nobody would think that there was a First Amendment ground that could be -- that could be invoked.[11] ”

Outcome

Decision

The Supreme Court reversed and remanded the decision of the United States District Court for the District of Columbia. Chief Justice Roberts announced the judgment for the court and delivered a plurality opinion joined by Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito. Justice Clarence Thomas filed an opinion concurring in the judgment only. Justice Stephen Breyer filed a dissenting opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.^[12]

Opinion

In his opinion for the court, Chief Justice Roberts noted that the "primary purpose" of FECA was to limit quid pro quo corruption but that,

“	An aggregate limit on how many candidates and committees an individual may support through contributions is not a 'modest restraint' at all. 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. To put it in the simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base limits Congress views as adequate to protect against corruption ... At that point, the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance ... 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. And as we have recently admonished, the Government may not penalize an individual for 'robustly exercis[ing]' his First Amendment rights. [11]	”
—Chief Justice Roberts[12]

Chief Justice Roberts was unconvinced that the government's asserted interest in establishing an aggregate limit on contributions -- corruption, or the appearance of corruption -- was sufficient to overcome the First Amendment implications in the case. In his words, "Buckley upheld aggregate limits only on the ground that they prevented channeling money to candidates beyond the base limits. The absence of such a prospect today belies the Government’s asserted objective of preventing corruption or its appearance. The improbability of circumvention indicates that the aggregate limits instead further the impermissible objective of simply limiting the amount of money in political campaigns."

Concurring opinions

Justice Thomas filed an opinion concurring in the judgment only. Justice Thomas agreed with the plurality opinion that the aggregate limits violated the First Amendment, but Justice Thomas believed the plurality did not go far enough in its ruling. In Justice Thomas' words,

“	I regret only that the plurality does not acknowledge that today’s decision, although purporting not to overrule Buckley, continues to chip away at its footings ... what remains of Buckley is a rule without a rationale. Contributions and expenditures are simply 'two sides of the same First Amendment coin,' and our efforts to distinguish the two have produced mere 'word games' rather than any cognizable principle of constitutional law ... For that reason, I would overrule Buckley and subject the aggregate limits in BCRA to strict scrutiny, which they would surely fail ... This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment. Until we undertake that reexamination, we remain in a 'halfway house' of our own design. [11]	”
—Justice Thomas[12]

Dissenting opinions

Justice Breyer filed a dissenting opinion which was joined by Justices Ginsburg, Sotomayor, and Kagan. At the outset of his opinion, Justice Breyer made clear the faults he identified in the plurality opinion,

“	Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Taken together with Citizens United ... 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. [11]	”
—Justice Breyer[12]

For Justice Breyer and his fellow justices in dissent, who felt that the aggregate limits were necessary to prevent quid pro quo corruption, the plurality's reliance on Congress' stated interest only in preventing corruption was too narrow. As Justice Breyer stated, "... as the history of campaign finance reform shows and as our earlier cases on the subject have recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself."^[12]

The opinion

Filings

The court noted probable jurisdiction on February 19, 2013.^[8]

Merits filings

Parties' filings

• Shaun McCutcheon, the lead petitioner, filed a merits brief.

• The Republican National Committee, a petitioner, filed a merits brief

• The Federal Election Commission, the respondent, filed a merits brief.

• McCutcheon filed a reply brief on the merits.

Amicus curiae filings

The following groups filed amicus curiae briefs supporting the petitioners, Shaun McCutcheon et al.

• Brief of the Cato Institute

• Brief of the Cause of Action Institute

• Brief of the Institute for Free Speech

• Brief of the Downsize D.C. Foundation et al.

• Brief of the Institute for Justice

• Brief of the National Republican Senatorial Committee and National Republican Congressional Committee

• Brief of U.S. Sen. Mitch McConnell (R-Ky.)

• Brief of the Tea Party Leadership Fund et al.

• Brief of Wisconsin Institute for Law and Liberty

The following groups filed amicus curiae briefs supporting the respondent, the Federal Election Commission

• Brief of the Brennan Center for Justice

• Brief of the Campaign Legal Center et al.

• Brief of the Communications Workers of America et al.

• Brief of Democratic Members of the U.S. House of Representatives

• Brief of the National Education Association et al.

• Brief of Professor Lawrence Lessig et al.

• Brief of U.S. Reps. Chris Van Hollen (D-Md.) and David Price (D-N.C.)

See also

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Footnotes

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