Scalia's new disaster: Why McCutcheon decision is scarier than Citizens United

With landmark decision handed down today, here’s what to know about McCutcheon v. FEC -- and its effects (UPDATED)

Published April 2, 2014 11:43AM (EDT)

Supreme Court Justice Antonin Scalia                   (Reuters/Kevin Lamarque)
Supreme Court Justice Antonin Scalia (Reuters/Kevin Lamarque)

Update, 4/2/14, 10:15 a.m.: The Supreme Court has ruled on this case and done the first option noted below: strike down aggregate limits on campaign contributions.

Original post: The Supreme Court’s decision in McCutcheon v. FEC, which could come down as soon as today, will be the most important money-in-politics ruling since 2010’s Citizens United. Though the latter significantly increased the amount of money in our elections, McCutcheon could make things even worse — by further inundating a political system already flush with cash, marginalizing average voters and elevating those who can afford to buy political access.

First, some background. The total amount one person can contribute to a single candidate is $5,200 per election cycle; this limit is not directly at issue in the case. McCutcheon, instead, involves a challenge to the federal aggregate contribution limits — the amount one person can give to all candidates, parties and PACs, combined. Currently, an individual can give no more than $48,600 to all candidates and $74,600 to all parties and PACs per election cycle (for a total of $123,200).  Alabama businessman Shaun McCutcheon and the Republican National Committee claim these aggregate limits violate their First Amendment rights.

Here are a few ways the court might decide the case:

The court could strike down the aggregate limits. Striking down the aggregate limits would flood our political system with even more money — but the seven-figure checks would go directly to candidates instead of outside groups like super PACs. These immense contributions would open the door even wider for those seeking to buy government influence.

Without aggregate limits, one candidate, through the use of joint fundraising committees, could solicit contributions of more than $3.6 million — an amount more than 70 times the median family income in America — from a single donor. This raises two serious concerns.

First, suppose a politician sets up a large joint fundraising committee and successfully solicits millions of dollars in contributions, which are then distributed to various candidates and political committees. Bringing in that cash for colleagues would give the politician serious heft in Washington. As a result, these large donations can corrupt the candidate collecting the funds, even if he or she isn’t spending them, because the politician’s political power depends upon the big donors. As the Supreme Court recognized in an earlier case, “Large [indirect] donations at a candidate’s or officeholder’s behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder.”

Even worse, through candidate-to-candidate transfers (and other transactions), a significant amount of this money could end up in the soliciting candidate’s own campaign. Hence, striking down the aggregate limits would significantly weaken the individual contribution limits because donors would be able to completely get around them through these transfers. Such large contributions directly helping candidates pose serious corruption risks because elected officials will feel indebted to their big donors.

In short, without aggregate limits, big donors would be able to give more money to directly benefit candidates, ensuring they have special access and influence after the election is over. Ordinary citizens’ voices and interests would have to take a back seat to those of the wealthy few.

The court could strike down the aggregate limits ... and take a dangerous step further. Though it is unlikely, the court could choose to not only strike down the aggregate contribution limits, but also change the level of constitutional scrutiny that applies to all contribution limits — including the individual limits. Such a change would endanger all campaign contribution limits across the country by making them significantly more vulnerable to First Amendment challenges. Without any contribution limits, one person could easily fund the entire campaign of one (or more!) candidates. Having a congressman indebted to a single person for the success of his or her campaign raises truly staggering corruption concerns. The Campaign Legal Center’s Trevor Potter has more on this scenario.

The court could uphold the aggregate limits. The court could also uphold the constitutionality of the aggregate contribution limits. Indeed, this is the outcome the court should reach if it adheres to its prior precedent on this issue established in Buckley, which explicitly upheld aggregate limits. If the court does so, both the federal aggregate limits and the aggregate limits of at least 11 states will remain in place.

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Beyond these potential outcomes, the court might decide to uphold one aggregate limit while striking down the other, as Chief Justice John Roberts hinted at during oral argument. The court could also return the case to the lower court for further fact finding, as was championed by Justice Stephen Breyer.

Freedom of speech is at the core of any free democratic society. But when large political donations threaten to drown out the voices and influence of ordinary citizens, such contributions are rightly limited. Although a decision upholding the aggregate limits would not cure all the ills currently plaguing the campaign finance system, it would help prevent the tide of cash from rising even more quickly. The court should uphold the aggregate contribution limits to help ensure a place in our democracy for everyone.

By David Earley

David Earley serves as Counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.

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