UPDATES & ANALYSIS

Supreme Court Oral Arguments Suggest That Federal Political Contribution Limits Vulnerable

by Colin Smith | October 10, 2013

By Colin Smith

On Tuesday morning the United States Supreme Court heard oral arguments in a case that many predict will be the next blockbuster campaign finance case, McCutcheon v. FEC.  At issue in McCutcheon is a federal law that caps the overall amount of money that an individual can contribute annually to multiple candidates.  The statute, the so-called “aggregate limit,” operates like this: in any given election cycle an individual may donate up to roughly $2,600 to any candidate in the ongoing general election cycle.  The aggregate limit effectively caps the number of $2,600 donations an individual can spread across multiple candidates.  That is, the limit subject to the McCutcheon challenge does not itself limit the amount of money an individual can give to a specific candidate, but it limits the amount of money one can give to a total number of candidates.

The plaintiff in McCutcheon has challenged this limit on the following theory:  Long standing Supreme Court precedent recognizes that political contributions are a form of political association protected by the First Amendment.  By making a contribution to the campaign of a specific candidate, a contributor is essentially stating, in a symbolic way, “I support candidate X.”  The aggregate limit, in the plaintiff’s view, effectively limits the number of candidates with whom a particular individual can associate because by capping the amount of dollars that can be used to demonstrate symbolic association, the total amount of association is itself limited.

Opponents of plaintiff’s position contend that striking down the aggregate cap would allow individual contributors to effectively become “kingmakers” at the federal level because they would be able to contribute to many (or all) candidates who end up getting elected in a certain cycle by contributing the statutory maximum to each because no law would prevent such profligate spending.   In other words, while the plaintiff in McCutcheon views the cap as a limit on total association with many candidates, the supporters of the aggregate limit view the cap as a necessary stopgap to prevent wealthy interests from currying undue favor with a wide swath of elected officials who then act to institute policies of their big donors at the federal level.

In short, what one side views as an impermissible constraint on political association rights, the other views as a vital protection against corruptive influences from moneyed interests.  So where will the Supreme Court fall?  After oral arguments, it appears the plaintiff’s argument is gaining the upper-hand.

If the oral argument transcript is any indication (which it may not be, as sometimes impressions left by the Justices at oral argument are wrong), the Court appears uniquely divided on the thorny issues of this case.  Chief Justice Roberts and Justice Alito appeared to be leaning toward striking down the aggregate limit as a violation of First Amendment freedoms.  Justice Kennedy, often thought to be a First Amendment warrior himself and author of the controlling opinion in Citizens United, appears to be inclined to do the same.  Justice Breyer seems to be somewhere in between.  He concurred in part and dissented in part in Citizens United, but gave at least some indication in oral argument that the effects of the aggregate limit might be unduly burdensome on political rights.  Justices Ginsburg and Kagan both broadcast a willingness to uphold the aggregate limit out of concerns about the corruptive influence of prolific contributors, with Justice Kagan even going so far as to suggest rhetorically that the Court’s holding in Citizens United regarding the non-corruptive nature of independent expenditures might be wrong (her comment on this point drew laughter from the Court’s packed gallery).  Justice Sotomayor appeared to be alone in contending that the case should be remanded back to the district court in order to develop a more complete record so as to assist the Justices in reaching their conclusions.  Justice Thomas, as always, remained silent during oral argument.

So how will all of this affect Iowa’s laws on elections and campaign finance?  It’s hard to tell.  Iowa, unlike at the federal level, has no contribution limits.  So an individual can donate $1.00 or $100,000 to each individual candidate, and that same individual can donate $1.00 or $100,000 to any number of candidates without restraint.  Public officials in Iowa have called for campaign finance reform in recent years, and they may do so again, as recent alleged political corruption issues have dominated the headlines for the past week.  If the High Court issues an opinion that speaks critically of contribution limits in general terms, the odds that Iowa will be able to enact new contribution limits that can withstand constitutional scrutiny will be diminished.  On the other hand, if the Court uses the McCutcheon case as a vehicle to reiterate that contribution limits can have a preventative effect on reducing potential corruption, then Iowa election law reformers may have more ammunition to push for contribution limits at the state level.  How the Supreme Court comes down on contribution limits in the McCutcheon case may help influence the course of election law reforms that have been the subject of chatter here in Iowa in recent years.