POLITICS
10/07/2013 04:52 pm ET | Updated Oct 08, 2013

McCutcheon v. FEC: Everything You Need To Know About The Next Citizens United

WASHINGTON -- On Tuesday, the Supreme Court will hear oral arguments in McCutcheon v. Federal Election Commission. The case challenges the two-year aggregate contribution limit for individual campaign donors and could open the door for even more money to flood into political campaigns and parties. Read on to learn everything you need to know about this key case.

Who brought the case and why?

The lead plaintiff is Shaun McCutcheon, the owner of Coalmont Electrical Development Company in Alabama. In recent years, McCutcheon increased his political involvement with the Alabama Republican Party and his contributions to political campaigns. In the 2012 electionn cycle, he gave $113,338 to candidates, PACs and party committees. He also gave over $300,000 to super PACs.

Under federal law, while individual donors are allowed to give unlimited amounts to super PACs (thank the 2010 court rulings in the Citizens United and SpeechNow.org cases), they are legally restricted in their contributions to candidates, traditional PACs and political parties. These restrictions include both "base" limits on contributions to an individual candidate ($2,600 per election) or party ($32,400), and aggregate limits on the amount a donor can give over a two-year period.

McCutcheon argues that the aggregate limits are an unconstitutional burden on his First Amendment rights of free speech and of association.

"This is a case about how to spend your money how you choose, and it's a very important First Amendment case about freedom of speech," McCutcheon said. "We should be able to support as many candidates as we want. There's no reason to limit the number of candidates or committees."

His case has been joined by the Republican National Committee, which would like donors to be able to give more to the various national and state GOP committees.

The lead counsel on the case has been James Bopp, who has made it his career goal to undo the campaign finance system set up in the post-Watergate 1970s and has challenged dozens of campaign finance statutes over the past three-plus decades. As with the Citizens United case, which he also shepherded through the lower courts, however, Bopp has been replaced for the actual Supreme Court argument.

What are these aggregate limits that McCutcheon and the RNC are challenging?

There are currently four aggregate limits, which apply over the 2014 electoral cycle:

• $48,600 to candidates
• $74,600 to political parties and PACs
• $48,600 to non-national party committees (a sub-limit to the overall party limit)
• $123,200 overall

These limits were put in place in the 1970s and upheld by the Supreme Court in the landmark 1976 Buckley v. Valeo case. At the time, the overall limit was set at $25,000 for an individual donor, but was later increased and indexed to inflation as part of the Bipartisan Campaign Reform Act of 2002 (BCRA), better known as McCain-Feingold.

The court has a divided stance on restricting campaign activity. In Buckley and ever since, the court has found that restrictions on campaign expenditures are an unconstitutional burden on free speech and association, while limits on campaign contributions are permissible because of the government's interest in preventing corruption and the appearance of corruption.

What are the arguments against the aggregate limits?

McCutcheon's brief argues that the ability to express support for a candidate through financial donations and the ability to "associate with others in the political process" are fundamental First Amendment rights.

It contends that the aggregate limits are unnecessary to prevent corruption because changes Congress has made over the years to campaign finance laws have essentially cut off all possible avenues for politicians and parties to evade the base limits.

The brief furthermore argues that the aggregate limits are set too low, placing an unjustified and unconstitutional burden on contributions that separately are considered too small to raise concerns of corruption.

"[A]n individual may contribute up to $5,200 to a single candidate in the current federal election cycle ($2,600 for both the primary and general elections) without creating a risk of corruption or the appearance of corruption that Congress deemed necessary to combat," the brief says. "But if a person contributes that same amount to more than nine different candidates for federal office, she would violate BCRA's $48,600 aggregate candidate contribution limit."

The RNC also argues that the ruling being appealed here, a decision by the U.S. Court of Appeals for the D.C. Circuit, relies on a theory of "gratitude" corruption -- that corruption includes the influence a donor may gain with a politician or the gratitude a politician may feel in connection with a campaign donation -- that was found insufficient to merit regulation by the Supreme Court in Citizens United.

What are the arguments in support of the aggregate limits?

Supporters argue that the court must keep the limits in place lest candidates be able to subvert the base limits through a daisy chain of PACs and party committees or the creation of super-sized joint fundraising committees.

Joint fundraising committees link up to several political committees under one umbrella; the joint committee can accept one large check to be divided among the others. In the absence of aggregate limits, a joint fundraising committee could potentially link up to as many as hundreds of other committees and receive checks in excess of $1 million, supporters of the limits argue. A super-sized joint fundraising committee could also work to undermine the base limits. (See here for more.)

The elimination of the aggregate limits will likely lead to a major increase in the influence the very wealthy wield in the political process. A small class of rich donors are already pushing to give more than the limits allow.

Harvard law professor and campaign finance reform advocate Lawrence Lessig argues that lifting the limits will further bend the institution of Congress toward the wishes of those funding its members, which he says is a form of corruption recognized by the framers of the Constitution.

What could be the outcome of the McCutcheon case?

Although the Supreme Court has never overturned a federal contribution limit before, the court in McCutcheon has a number of options. The main possible outcomes include:

1. Uphold all the aggregate limits.

2. Strike down all the aggregate limits.

3. Strike down one or more, but not all, of the aggregate limits. The court could decide that the aggregate limit on candidate contributions is constitutional, but that the party and PAC limits are not.

4. Decide that the aggregate limits -- one, some or all -- are unconstitutionally low, but that they should exist at a higher version, which Congress must figure out.

5. Listen to Senate Minority Leader Mitch McConnell (R-Ky.).

What does Mitch McConnell have to do with this?

The court has given McConnell time during oral arguments to make the case that campaign contribution limits are an unconstitutional burden on free speech and that the court should give contribution limits a higher level of scrutiny than it has in the past.

Trevor Potter, president of the Campaign Legal Center, believes that the granting of time to McConnell should be a major concern for supporters of contribution limits.

"[I]f the plaintiffs and Senator McConnell are successful in convincing five Justices of this argument, then not only will the Court strike down the current aggregate contribution limits, but in the future it will be much easier for those seeking to remove all contribution limits and allow unlimited contributions to candidates and parties to challenge any contribution limit in court," Potter writes.

Where do the justices stand?

The liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- are known to support contribution limits, while three of the conservative justices -- Antonin Scalia, Anthony Kennedy and Clarence Thomas -- generally hold that the contribution-expenditure distinction should simply be tossed.

The views of Chief Justice John Roberts and Justice Samuel Alito have not been as clear. A report from Democracy 21 catalogs Roberts' history of upholding contribution limits and the prohibition against soliciting large checks.

Given that Kennedy has previously voted to uphold the large-check prohibition, according to University of California-Irvine election law professor Rick Hasen, there is an outside chance that he might agree that the likely expansion of joint fundraising committees after the elimination of aggregate limits would allow candidates to accept impermissibly large checks.

But Roberts' prior rulings and the Supreme Court's longstanding precedent of upholding contribution limits are what leave supporters of the aggregate limits cautiously optimistic.

"This case is different from Citizens United, and we believe we have a very strong case," said Democracy 21 President Fred Wertheimer. "That doesn't mean we're going to win. We have five justices who have been negative in a number of cases to campaign finance laws, but despite that, we have a reasonable chance of winning this case."

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