What The Media Need To Know About “The Next Citizens United”

On October 8, the Supreme Court will hear oral arguments in McCutcheon v. Federal Election Commission, a challenge to campaign contribution limits that court-watchers call “the next Citizens United.” Although opponents of campaign finance regulation characterize aggregate contribution limits as a violation of the First Amendment, media should be aware that such limits guard against institutional corruption in the democratic process, a foremost concern of the Constitution's framers.

McCutcheon v. FEC Seeks To Strike Down Decades-Old Campaign Finance Law As An Unconstitutional Restriction On Political Speech

The Washington Post: A “Conservative Activist” And The Republican National Committee “Argue[ ] That There's No Constitutional Rationale” To The Contribution Limits. Noting the case “could be the new Citizens United” -- the 2010 decision that reversed limits on independent campaign expenditures by corporations and unions -- the Post reported "[s]ince the justices decided to take [McCutcheon], speculation has been raised that the conservative majority" wants to overturn precedent that limits direct donations to political candidates:

[McCutcheon] gives the justices a chance to continue their dismantling of restrictions on money in politics, most notably with the landmark Citizens United v. FEC decision of early 2010.

With the new case, the court could strike a blow against fundraising limits for federal candidates and political parties.

The case does not challenge the $2,600 cap on donations to a single candidate's campaign but rather the overall limit -- $123,000 -- that one person can give over a two-year election cycle.

Removing that ceiling would allow a single donor to give the maximum amount to more candidates and, crucially, to political parties such as the Republican National Committee, which brought the lawsuit along with Shaun McCutcheon, an Alabama businessman and conservative activist.

The court decided decades ago that the government is constitutionally permitted to limit donations to candidates with the goal of fighting corruption. But the RNC argues that there's no constitutional rationale for limiting how much one donor can give to many candidates. The thinking goes that because each candidate receives only $2,600, none of them ends up corrupted.

Since the justices decided to take the case, speculation has been raised that the conservative majority is looking to reverse a lower-court ruling and strip away that overall limit, which was upheld in a different form in 1976. Such a change would allow more money to flow, in particular, to political parties, which have had a diminished role in campaigns with the rise in spending by advocacy groups in the past few years, mainly after Citizens United. [The Washington Post, 2/20/13]

McCutcheon Decision That Strikes Down Limits Will Make It Easier For A Few Wealthy Donors To Influence Elections

The New YorkerMcCutcheon Is “Worse” Than Citizens United. CNN legal analyst and New Yorker staff writer Jeffrey Toobin reports that the Supreme Court is poised to allow even more money to flood into federal elections and Citizens United “was not an aberration for this Court. ... The Justices in the majority are engaging in a long-term project to deregulate campaigns”:  

Think the Supreme Court's decision in Citizens United was bad? A worse one may be on the horizon.

To recognize the problem, it's necessary to review some of the Court's gnarled history on the subject of campaign finance. In Citizens United, which was decided in 2010, the Court rejected any limits on what a person or corporation (or labor union) could spend on an independent effort to help a candidate win an election. Thus the rise of Super PACs; that's why Sheldon Adelson could spend sixty million dollars to help Mitt Romney in 2012. But, though Citizens United deregulated independent expenditures on behalf of candidates, the case said nothing about direct contributions to the candidates themselves.

That's where the new case comes in.


To see why McCutcheon may win, one must examine the strange reasoning that governs the Supreme Court's decisions on campaign finance. In his brief to the Justices, McCutcheon makes an argument that is breathtaking for its candor. He says that when Congress first upheld limits on contributions, in the 1976 case of Buckley v. Valeo, the limits on aggregate giving served a useful purpose. Without the ceiling, the Court explained, a person could legally “contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or [make] huge contributions to the candidate's political party.”

But that, McCutcheon points out, was before the days of Citizens United. Now, he implies, Citizens United has undermined so many of the old rules that they are kind of irrelevant at this point. Indeed, the lower-court judge who considered the McCutcheon case upheld the existing rules but raised the “possibility that Citizens United undermined the entire contribution limits scheme.” [The New Yorker7/30/13]

Democracy 21: Striking Down Overall Contribution Limits Will Recreate System That “Existed Prior To The Watergate Scandals.” The non-partisan campaign finance reform advocacy group Democracy 21 outlined how individual donors will be able to funnel millions on behalf of candidates and parties, returning our democracy to “legalized corruption”:

If the Supreme Court were to strike down the limits on overall contributions at issue in the McCutcheon case, it would reverse almost 40 years of Supreme Court precedents upholding the constitutionality of federal contribution limits. Such a decision would allow individual donors to give million-dollar and multi-million contributions to directly support federal candidates and parties (See examples below.) This would return to federal elections the huge contributions that the Supreme Court has held could be prevented and would recreate the system of legalized corruption that existed prior to the Watergate scandals.


In 2012, for example, President Obama and Mitt Romney each had a joint fundraising committee consisting of his campaign committee, his national party's committee and several state party committees. Obama and Romney used the joint fundraising committees to solicit individuals to give a contribution of $70,800 for the party committees, which was the overall contribution limit for donations by an individual to all party committees in the 2012 election cycle. The money was then spent by the committees to support the presidential candidates who solicited the contributions.

If the overall contribution limits had not been on in effect in 2012, President Obama and Mitt Romney would have been able to solicit and have the benefit of $1 million contributions for the 2012 presidential election, almost fifteen times the amount they could legally solicit in 2012. [Democracy 21, 9/24/13]

Lyle Denniston: McCutcheon Is A “Fervent New Effort” By Republicans To Eliminate Campaign Limits. Reporting for SCOTUSblog, long-time Supreme Court expert Denniston notes that the idea of valuing unrestricted campaign contributions over corruption concerns is particularly attractive to the GOP:

The Republican National Committee on Tuesday mounted a fervent new effort to get the Supreme Court to give those who contribute money to political campaigns as much freedom as those who spend money independently to promote candidates and causes.  In a sixty-page brief in a case that the Court is to decide at its next Term, the GOP's national organization argued that the time has come to give donors wider First Amendment freedom to make contributions to parties and candidates.

For the past thirty-seven years, the Court has held fast to the idea that limits on political spending put a heavier burden on political expression than limits on contributions do, and so the government has more power to regulate contributions than spending.   The differing approach originated in the Court's 1976 decision in Buckley v. Valeo, and it has withstood repeated attacks by advocates for donors and even by strong criticism by some Justices themselves -- including current Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.


Both the RNC and McCutcheon urged the Court to use the most rigorous constitutional test -- “strict scrutiny” -- to judge limitations on campaign contributions.  The Court has used various phrases in judging such restrictions, but has never embraced the toughest test.   The RNC devoted considerably greater attention to that issue than did McCutcheon.

This case does not involve any challenge to what are called the “base limits” on campaign contributions.  Those are the annual limits on what a donor can give to a candidate directly, to a campaign committee, a party, or a party committee.  The challenges, rather, are to what are called “aggregate limits” -- the total amount that a donor can give to all political recipients during a two-year election cycle. Both the RNC and McCutcheon contended that these overall limits impose a heavier burden on campaign expression than do the base limits, and cannot be justified by any argument that giving to more recipients risks corruption in campaign financing. [SCOTUSblog, 5/8/13]

...And It Would Create Bad Law That Ignores The Framers' Intent Of Preventing Institutional Corruption

Slate: Supreme Court's New “Narrowed” Corruption Definition Could Pave The Way For “The Next Citizens United.” Law professor Richard L. Hasen fears that the Court's recent mischaracterization of corruption as “outright bribery” -- a narrower interpretation that excludes “buying access to politicians” -- will influence its analysis of campaign contribution limits:

In 2010, in Citizens United, the Supreme Court overturned two earlier cases that upheld limits on the campaign spending of corporations and unions. Along the way, the court narrowed its definition of “corruption” to exclude buying access to politicians or ingratiating oneself with them--characterizing corruption as closer to outright bribery involving a quid pro quo. In Citizens United, Justice Kennedy wrote for the court majority that “there is only scant evidence that independent expenditures even ingratiate. ... Ingratiation and access, in any event, are not corruption.” 

That rejiggered definition could now rise again in McCutcheon. In Citizens United, the justices said that nothing in the case affected the standard for reviewing contribution limits. But they haven't shown much respect for precedent in the campaign finance arena. And Senate Minority Leader Mitch McConnell, a leading opponent of campaign finance laws, has urged the court to start applying the strict scrutiny standard -- the one that killed limits on spending -- to the review of contribution limits. The court recently granted his lawyer time at the McCutcheon oral argument to make that case. [Slate, 9/30/13]

Lawrence Lessig: Framers Primarily Concerned With “Dependence Corruption,” Not “Quid Pro Quo Corruption.” Lessig, a law professor at Harvard and campaign finance scholar, recently completed an extensive report on how the Framers defined “corruption” and concluded the original meaning was concerned with “securing a government free from corrupting dependence on high-dollar donors,” not the limited definition of bribery favored by McCutcheon and the RNC: 

Appellant McCutcheon and the Republican National Committee (collectively “McCutcheon”) contend that the federal aggregate contribution limits impose substantial burdens on First Amendment freedoms and cannot be justified by any constitutionally legitimate interest, and in particular, by the interest in avoiding corruption. ... McCutcheon's argument, however, depends upon a modern understanding of the term “corruption,” in sharp conflict with the term's original meaning.

The Framers viewed corruption as one of the greatest threats to government. They considered anti-corruption measures essential to an enduring republican system of government. As George Mason warned his fellow delegates at the Constitutional Convention, “if we do not provide against corruption, our government will soon be at an end.” ... Thus, in drafting the Constitution, the Framers sought to ensure that “corruption was more effectually guarded against, in the manner this government was constituted, than in any other that had ever been formed.”


The Framers had a very specific conception of the term “corruption” in mind, one at odds with McCutcheon's more modern understanding of that term. For the Framers, “corruption” predicated of institutions as well as individuals, and when predicated of institutions, was often constituted by an “improper dependence.” ... In the case of the House in particular, they sought an institution “dependent on the people alone[.]” ... Any conflicting dependence--such as upon foreign patrons--would “corrupt” that intended dependence, and in turn threaten to corrupt the nation's fledgling republican institutions.

[My] review of Framing-era usage of the word “corruption” ... demonstrates that the need to prevent such “dependence corruption” dominated the discussions of “corruption” over the adoption and ratification of the Constitution. This research establishes that (1) the Framers' dominant concern was the corruption of the institutions of government, not individuals; (2) the Framers recognized that democratic institutions could be corrupted through developing conflicting dependencies, as they had in England; and (3) corruption of individual officeholders by bribery or other forms of quid pro quo corruption was a real, but secondary, concern. [Amicus Curiae Brief of Professor Lawrence Lessig in Support of Appellee, McCutcheon v. Federal Election Commission7/2013]