On Campaign Finance case: McCutcheon v. FEC

The five-cent explanation:  Sean McCutcheon is a wealthy man who wanted to give more than $123,000, the total amount (aka “aggregate cap”) individuals can give, to candidates running for federal office in recent elections.  McCutcheon’s case challenges the constitutionality of the cap, the Federal Election Campaign Act (FECA), and has the potential to overturn the ruling in Buckley v. Valeo (1976).  He believes money is speech and the cap limits his speech, which is a violation of the 1st amendment.  What do you think?

The ten-cent explanation: The case is called McCutcheon v. FEC (The Federal Election Commission).

The FEC is a bureaucratic office tasked with making sure our elections aren’t rigged.  They regulate the money that goes to Congressional candidates and candidates running for President.  The FEC is known as the very pernicious “campaign police.”  According to their website:

In 1975, Congress created the Federal Election Commission (FEC) to administer and enforce the Federal Election Campaign Act (FECA) – the statute that governs the financing of federal elections. The duties of the FEC, which is an independent regulatory agency, are to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections.

The FEC turns 38 on October 15th (Happy birthday!)  If you remember 1975, then you likely remember it was a time when corruption in the Nixon White House resulted in a presidential resignation, new laws on campaign contributions, and strict enforcement of existing election laws (ironically signed into law by Nixon in 1972…lotta good those did).  The reforms to come out of the 1970s limited the amount of money that could be donated to candidates, required public disclosure of who donated to candidates and where candidates spent their money, and made public financing available in presidential elections.

No good law ever goes unchallenged, and Buckley v. Valeo challenged the constitutionality of FECA two years after it was signed into law.  In Buckley, the Supreme Court overturned aspects of FECA and the subsequent effects of the decision were such that aggregate (sum total) contributions to all candidates in elections can be limited.  Today the cap is a whopping $123,000 for an individual contribution, or “$48,600 per cycle for candidate committees and $74,600 for contributions to non-candidate committees such as party committees.”

Sean McCutcheon is a wealthy man who wanted to give more than that amount in the most recent elections.  McCutcheon’s case challenges the constitutionality of the aggregate cap.  He believes money is speech and the cap limits his speech, which is a violation of the 1st amendment.

If you think this is no big deal, then you clearly forgot how big a deal the last campaign finance case (Citizens United v. FECwas.   It became a big deal when it was thrust into the mainstream media after Obama criticized the decision at the State of the Union address in 2010.  Justice Alito broke his poker face when he famously shook his head at that remark.  McCutcheon isn’t exactly the next Citizens United, but it does come at a time when people are reeling after the sticker shock of most federal elections, especially given the economic state of our Union and public cynicism about the Citizens United decision.  We will stay tuned to keep you informed while our “essential” non-furloughed Justices kick off opening week with a great constitutional case.

The fifteen-plus-five minute explanation: Read the previous explanation, watch the clip below explaining the case, then check out this cool timeline documenting the history of Campaign Finance Reform.

McCutcheon v. FEC video clip from C-SPAN

McCutcheon v. FEC video clip from C-SPAN

Decision Update (4/3/14): McCutcheon is the winner in this case.  But don’t take our word for it, take his:

Our political system disadvantages individual people who want to participate. Instead, a series of regulations and court decisions—many of which have been sought by companies, unions and non-profit groups that spend huge amounts of money on politics—have increased their influence. It is time to for individual people to get back into the game. That’s always been my goal.

It was the aggregate limits on giving to the candidates and committees that made no sense to me. The consequences of these rules were absurd. I could give the legal amount of $2,600 to 17 different candidates. But if I give that same legal amount to an 18thcandidate, it constitutes a violation that somehow corrupts the system.

Only politicians in Washington could come up with such foolishness. And they did just that in 2002 when they passed the Bipartisan Campaign Reform Act. This law, in turn, was based on the series of laws enacted in the 1970s known as the Federal Election Campaign Act. Most sensible Americans understand that, if $2,600 contributions to 17 individual candidates don’t corrupt any of them, then it can’t possibly corrupt an 18th candidate, or a 28th, or 38th…”

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Thanks Sean, via Politico article here, taken from excerpts from McCutcheon’s book on being an “outsider” inside the Court…sounds like a familiar view.

So what does the McCutcheon opinion – a divisive and contentious 5-4 decision in which both the the opinion and dissent were passionately read from the bench – do to the Buckley v. Valeo precedent?  According to the opinion written by Chief Justice John Roberts, joined by Alito, Thomas, Scalia, and Kennedy, McCutcheon doesn’t significantly change it.  It’s no secret the justices who joined the majority in this case, and made up the same majority in 2010 in the Citizens United v. FEC case, support cases that chip away at campaign donor restrictions set forth in the 1970s legislation (see above).  This was evident when Roberts wrote that this time, in McCutcheon, “the court was confronted with a different statute and different legal arguments, at a different point in the development of campaign finance regulation.”  Perhaps less subtle about the speed with which he’d like to see limits on donations eradicated was Justice Thomas, who wrote in his concurrence “I would overrule Buckley.”  In these cases, money, to the majority, equates to an expression of speech that is protected under the 1st Amendment, and restrictions hinder access to speech rendering them unconstitutional.

So what does this mean to us?  There are still limitations on how much individuals may donate to candidates, but as Roberts said, the lift on the aggregate bans should not offend 1st Amendment advocates.  “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,” the Chief Justice wrote in his opinion.  If the product of uncapped limits are loopholes and corruption, surely the FEC will mete out and prosecute such offenders.  On the other hand, according to Justice Breyer’s dissent, joined by Justices Ginsburg, Kagan, and Sotomayor, the voice and power of money is stronger than the people.  “Where enough money calls the tune, the general public will not be heard . . . And a cynical public can lose interest in political participation altogether.”

We know most government courses – secondary and college-levels – spend time covering election laws and cases like Buckley and Citizens United.  A great source to show the evolution, rise, and fall of election laws from the founding of America to today is here, via the Washington Post.  It’s a bite-sized, accessible run-down of all the need-to-know election regulation efforts, laws, and cases.  Enjoy!

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