Eric Davis: Court ruling looms on campaign finance

Next Tuesday, the U.S. Supreme Court will hear the most important campaign finance case since Citizens United. The case involves a challenge to a statute limiting the aggregate amount of money individuals may contribute to all federal candidates and party committees.
Shaun McCutcheon, a donor from Alabama, supports Republican candidates for the House and Senate. Although he does not intend to give any individual candidate more than the $2,600 allowed by law, he wants to make total contributions to congressional candidates of more than the aggregate limit of $48,600. If, for example, McCutcheon wanted to donate $2,600 to each of 50 Republican candidates in next year’s congressional elections, those contributions would total $130,000, more than twice the allowable maximum.
McCutcheon, joined by the Republican National Committee, filed suit against the aggregate contribution limits. The RNC is particularly concerned about the aggregate cap of $74,600 for individual contributions to all political party committees. A federal court in Washington, D.C., upheld the constitutionality of the aggregate limits. The Supreme Court granted McCutcheon’s and the RNC’s petitions for review of the lower court decision, setting up next week’s oral argument.
In the nearly 40 years that the Supreme Court has ruled on constitutional challenges to campaign finance laws, the court has never struck down a contribution limit in federal elections. The court has ruled some state contribution limits, such as those at issue in a 2006 case from Vermont, as improper because they were too low, but there has never been a ruling that Congress and the state legislatures are barred by the First Amendment from limiting the amount of money that contributors may give to candidates and political committees. The campaign finance laws that have been overturned by the Supreme Court, such as those in the Citizens United case, have involved restrictions on expenditures, such as corporate expenditures in Citizens United.
The Supreme Court has applied a less exacting standard of review to contribution limits than it has to expenditure limits. Contribution limits are less of a burden, in First Amendment terms, than expenditure limits, because legislatures may reasonably conclude that limits on contributions are needed to prevent corruption, or the appearance of corruption, in elections and subsequent policymaking. Expenditure limits, on the other hand, may impermissibly burden the First Amendment rights of candidates, political committees, and other organizations to make their views on elections and issues known to the public. Thus, expenditure limits must survive what the Supreme Court calls “strict scrutiny.”
McCutcheon and the RNC are challenging the aggregate contribution limits on two grounds. First, analogizing from the 2006 Vermont case, they argue that the aggregate caps are too low. The $48,600 cap on contributions to candidates restricts a donor to giving the maximum contribution to no more than 18 candidates for the House and Senate in a single election cycle, when each party typically has between 400 and 500 candidates in a given election year. Second, McCutcheon and the RNC want the Supreme Court to stop distinguishing between contributions and expenditures when analyzing campaign finance laws. They argue that contribution limits, like expenditure limits, can only be upheld after being subject to the most exacting judicial scrutiny, a test that the aggregate contribution caps cannot, in their view, survive.
If the Supreme Court accepts McCutcheon’s and the RNC’s second argument and strikes down the aggregate caps after applying strict scrutiny, no federal or state campaign contribution limit would likely be safe from being ruled unconstitutional in a future case. Such a decision would mean the end of the campaign finance system put in place after Watergate.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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