This week, the Committee for Justice filed an amicus curiae brief
in McCutcheon v. FEC
, the next big
campaign finance case before the U.S. Supreme Court.
CFJ’s brief supports the Republican National
Committee and individual plaintiff Shaun McCutcheon in their First Amendment
challenge to the aggregate contribution limits imposed by McCain-Feingold.
The Supreme Court will hear arguments in the
case this fall.
CFJ president Curt Levey described the brief as “part of
CFJ’s continuing effort to battle judicial activism.
Prior to the Roberts Court, the Supreme Court
functioned more as legislators than judges on this issue, bending the First
Amendment to accommodate the push for campaign finance reform.
The result is a politically convenient but
constitutionally groundless interpretation of the First Amendment that allows
the government to treat campaign contributions as a lesser form of speech.”
The aggregate limits being challenged in McCutcheon
restrict the total amount of political
contributions a donor can make over a two-year election cycle, even if the donor’s
individual contributions comply with McCain-Feingold’s base limits – for
example, the $2,600 per candidate per election limit.
The aggregate limits specify that no one can
give more than $48,600 to all federal candidates combined over the election
cycle. Thus, the contributor is limited to supporting nine candidates if he
gives each one $2600 for both the primary and general election.
Similarly, there is a two-year aggregate limit of $74,600
on contributions to non-candidate committees, such that a donor could not give
$32,400 per year – the base limit – to committees for both
Senate and House races (say, the NRSC and the NRCC).
Mr. Levey notes that “It is hard enough to square
McCain-Feingold’s base limits with the First Amendment, but it’s even harder to
justify the aggregate limits, which serve no significant interest – constitutionally
valid or otherwise – when added on top of the base limits.
Striking down the aggregate limits would be
both important in its own right and a critical first step towards ending the
second-class treatment of political contributions under the First Amendment.”
CFJ’s brief points out that the base limits are purported to
serve the only two interests – countering the occurrence or perception of quid
pro quo political corruption – identified by the Court as constitutionally
sufficient to justify contribution limits.
Therefore, the aggregate limits can add nothing more than ensuring that
no one engages in too much political speech, an interest the Court has
CFJ’s brief goes on to focus on the perception of
corruption, detailing how public opinion surveys over the last several decades
demonstrate that the aggregate limits do not and cannot affect the public
perception of corruption.
In fact, the
surveys show that public distrust in the government is caused by factors other
than campaign spending.
CFJ’s brief also focuses on the perverse effect of the aggregate
limits, which serve to direct the flow of money away from candidates and
political parties and towards entities, such as Super PACs and 501(c)(4)
organizations, that engage in unregulated independent expenditures – in other
words, away from organizations with an interest in moderation, compromise and
consensus and towards groups with narrower interests and often less moderate
Explains CFJ’s Levey, “The resulting flow of money away from
candidates and political parties and towards independent expenditure groups is
completely counter to the one interest expressed almost unanimously by the
public – the desire for more political compromise and less hyper-politicization
As a 501(c)(4)
organization, the Committee for Justice is well aware that (c)(4)’s and Super
PACs cannot serve the unique and important role that political parties play in
the political process, a role that is being weakened by McCain-Feingold’s
CFJ’s brief was authored by Emory Law School’s Supreme
Court Advocacy Project and CFJ President Curt Levey.
A copy of CFJ’s brief is available upon