U.S. Supreme Court Strikes Down Federal Aggregate Campaign Contribution Limits

 In Case Updates, McCutcheon v. FEC

The United States Supreme Court today struck down aggregate limits on campaign contributions to candidates for federal elected offices in McCutcheon v. FEC.  Campaign finance laws had limited contributions to a single candidate or committee, but also imposed limits on the amount that could be contributed to all candidates and committees. For example, the law limited contributions to a single candidate to $5,200 ($2,600 each for a primary and a general election), but also imposed a cap of $48,600 to all candidates.  So if a person made $4,860 contributions to 10 different candidates, it would be unlawful to donate even $1 to an 11th.  The Court concluded that the limitation on aggregate contributions violated the First Amendment, because a contribution is an act both of speech in support of a candidate and a choice to associate with that candidate.

In today’s decision, the Court reiterated earlier holdings that only laws carefully tailored to prevent “quid pro quo corruption” (the promise of particular action in return for payment), can justify limiting political contributions. While limiting the amount of contributions to a single candidate helped prevent such corruption, an aggregate campaign limit does not further that goal, the Court concluded.  If giving the maximum contribution to ten candidates is deemed to not give rise to quid pro quo corruption, giving the maximum contribution to an eleventh cannot either.

While “money” may not be “speech,” political expression almost always involves the expenditure of money and, therefore, limiting the amount that citizens and candidates can contribute or spend to engage in political expression raises profound First Amendment concerns. The Court recognized that money spent in politics is oftentimes unpopular, but that the First Amendment protects unpopular speech as well as popular speech:

“Many people . . . would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”

WILL filed an amicus brief on its own behalf with the U.S. Supreme Court in the McCutcheon case, urging the Court to abandon the artificial distinction between campaign contributions and independent expenditures, extending the full force of constitutional protections to both.  Justice Thomas agreed with that position; the other four Justices in the majority (Chief Justice Roberts and Justices Kennedy, Scalia, and Alito) found that the aggregate limit failed even the less strict constitutional test applied to restrictions on contributions.

WILL has also filed a lawsuit challenging Wisconsin’s own aggregate campaign contribution limit.  Wisconsin is one of only eight states with an aggregate limit, and its limit is even more onerous than the federal limit.  While the federal aggregate limit is set at approximately nine times the individual limit, in Wisconsin the aggregate limit is the same as the individual limit – if a person contributes the maximum lawful contribution of $10,000 to a single candidate for state-wide office, the individual is then barred from making any other contribution, in any amount, to any other candidate for state or local office or to any political action committee in the same year.

“We are pleased with today’s decision,” said Rick Esenberg, President and General Counsel of WILL.  “We also believe that our case challenging state aggregate limits will reach a quick resolution, now that the Supreme Court has found that the much less stringent federal aggregate limit is unconstitutional.”

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