Coming Up At The Court - McCutcheon v. FEC

Campaign financing is a touchy subject, pitting concerns about free speech against concerns about the corrupting and other negative effects of money in politics.

With the Supreme Court's decision in Citizens United v. Federal Election Commission, corporate funding of independent political broadcasts in candidate elections cannot be prohibited. This holding has paved the way for many other challenges to campaign finance restrictions. One challenger is Shaun McCutcheon, an electrical engineer from Alabama. In February of 2012, he voiced his frustration about federal limits on overall campaign donations during a two-year election cycle - and conservative election lawyer Dan Backer heard him.

What followed was McCutcheon v. Federal Election Commission, which the Supreme Court will hear in October. In this case, McCutcheon challenges a limitation on the total amount of campaign donations an individual can give during any election cycle. For example, during the current election cycle, an individual can give up to $2,600 per candidate per election, including both primaries and general elections. There is no limit to the number of candidates an individual can support, but the donor can give no more than a total of $48,600 to federal candidates over two years. Similar restrictions apply to donations to parties and political action committees. McCutcheon argues that Citizens United's holding requires the conclusion that these limits are unconstitutional.

SCOTUSblog is currently sponsoring a wide-ranging symposium on this case, with information and background as well as the various controversies involved in the arguments.

Jeff Toobin, writing for the New Yorker, declares that to the Roberts court, campaign contributions are a form of "individual expression," therefore are protected as speech under the First Amendment. He points out that in the majority opinion in Citizens United, Justice Kennedy wrote that "political speech cannot be limited based on a speaker's wealth." He predicts that there are enough votes on the Court for Mr. McCutcheon to succeed in his effort to declare the aggregate contribution limits unconstitutional.

What would the founders have said on the issue? Thanks to Harvard professor Lawrence Lessig's project-turned-Tumblr blog "'Corruption,' originally" we can examine their thoughts on the subject. According to Elizabeth B. Wydra (writing for Reuters), the results of the project established that the the term "corruption" in the framers' original writings usually referred to an entity, not a person. She goes on to argue that the aggregate campaign finance laws are in place to prevent the sorts of "improper dependence" forces that the framers did refer to.

On the other hand, Joel Gora argues, the separate aggregate limits imposed on the amount of overall contributions are unconstitutional and unnecessary. He argues that they operate more like the expenditure limits declared unconstitutional in Buckley v. Valeo, the landmark Supreme Court case that ruled on campaign finance laws in 1976, in which Gora argued on behalf of the ACLU.

For a side-by-side comparison, look at the arguments presented by David Gans for Balkinization and Bob Bauer for More Soft Money Hard Law. Gans writes on Professor Lessig's brief submitted to the Supreme Court and reiterates the findings from Lessig's Tumblr project. Bauer directly challenges Lessig's and Gans' arguments and their application to the aggregate limits at issue in McCutcheon.

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