Supreme Court May Unleash More Money into our Elections
McCuteheon v. FEC may join Citizens United, SpeechNow.org, and Buckley v. Vallejo as the
group of court cases that unleashed enormous amounts of money into our elections, and
destroyed the Bipartisan Campaign Reform Act of 2002 (BCRA.)
Shaun McCutcheon is a wealthy businessman from Alabama who wants to contribute $25,000
each to three national Republican Campaign Committees (the Republican National Committee,
the National Republican Senatorial Committee, and the National Republican Congressional
Campaign Committee.) He also wants to contribute $1,776 dollars each to about thirty
congressional candidates. Individually, these amounts are below the legal limits for campaign
contributions but together, they exceed the two year aggregate limits for contributions.
Most people are unaware that there are biennial limits on the total amounts that can be
contributed to candidate committees (currently $48,600) and to political party committees and
the now obsolete traditional BCRA-compliant PACs (currently $74,600.) Most people do not
contribute as much as they are permitted to contribute to a candidate, or a political party and
most people do not contribute more than $123,200 every two years (the aggregate limit in effect
for 2013-2014.) In 2002, when BCRA was passed, Congress wanted to avoid giving wealthy
people more than their fair share of access to and influence over their congressional
representatives. McCutcheon v. FEC may change that.
Many analysts predict that the Supreme Court will find no good reason for the two year limits on
aggregate contributions, and will find the limits unconstitutional. The fact that McCutcheon is
not challenging the base amounts to each of his national committees and congressional
candidates means that the argument about the opportunity for selling votes for money is, by
definition moot. He does not dispute that the base amounts are appropriate – for example,
currently $2,600 for federal candidates for primaries, and another $2,600 for the November
elections in 2013-2014, as established by BCRA. (The amounts change based on inflation.) He
could have legally given even more than the amounts he is planning to give to individual entities;
it is only the aggregate limits that make his proposed contributions illegal. This is a case, like
SpeechNow.org, that was carefully crafted to attack BCRA.
The Court could take this opportunity to review Buckley v. Vallejo, the case that determined that
donations to political campaigns could be limited but expenditures by political campaigns could
not be limited. Because money is necessary for campaigns to get their message out to the public,
political campaign expenditures could not be limited, based on the First Amendment (Money is
Speech). Since Citizens United decided that only an exchange of money for votes (the quid pro
quo) could be outlawed, and not the problem of legislators who facilitate their donors’ interests
without explicit sale of their votes, the Court may be willing to erase the distinction between
campaign donations and expenditures. The access and influence wealthy donors have over their
legislators does not alarm this Supreme Court.
If the Court were to decide that contributions to campaigns or political parties could not be
limited, more money would pour into the candidates’ campaigns and political parties. Would
that reduce the money going to SuperPACs?