October 08, 2013

CFJ Fights for Free Speech at High Court

Today the Supreme Court hears oral argument in the biggest campaign finance case since Citizens United, and the Committee for Justice has weighed in on the side of free speech.  CFJ’s amicus brief in today’s case, McCutcheon v. FEC, supports the Republican National Committee and campaign donor Shaun McCutcheon in their First Amendment challenge to the aggregate contribution limits imposed by McCain-Feingold.
Most observers believe the Court will strike down the aggregate limits at issue, which restrict the total amount of political contributions a donor can make over a two-year election cycle.  For example, a donor must comply not only with McCain-Feingold’s base limits – such as a $2600 per-candidate limit in each election – but also an aggregate or combined limit of $48,600 on contributions to all federal candidates over the election cycle. As a result, the contributor is limited to supporting no more than nine candidates if he gives each one $2600 for both the primary and general election.
CFJ president Curt Levey explained that “it is hard enough to square McCain-Feingold’s limits on per-candidate contributions with the First Amendment, but it is even harder to justify the aggregate limits, which serve no significant interest – constitutionally valid or otherwise – when added on top of the individual limits.”
Levey emphasized that “striking down the aggregate limits would be both important in its own right and a critical first step towards ending the Court’s second-class treatment of political contributions under the First Amendment.”
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 – like Citizens United – that engage in independent expenditures.  In other words, said Levey, “the aggregate limits diminish the voice of people and organizations with an interest in moderation, compromise and consensus and amplify the message of those with narrower interests and often less moderate views. “
This effect, added Levey, “is completely counter to the public’s nearly unanimous desire for more political compromise and less hyper-politicization of campaigns.  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 consensus-building role that political parties play in the political process, a role that is being weakened by McCain-Feingold’s aggregate limits.”
CFJ’s McCutcheon brief also focuses on the perception of corruption, the countering of which is one of the purported interests served by McCain-Feingold and relied on to defend its constitutionality.  CFJ’s brief details how public opinion surveys going back decades demonstrate that the aggregate limits do not and cannot diminish the public perception of corruption.  In fact, the surveys show that public distrust in the government is caused by factors other than campaign spending.
Moreover, if the per-candidate ceiling already serves the only interests identified by the Supreme Court as sufficient to justify contribution limits, as McCain-Feingold’s defenders assert, then the aggregate limits can add nothing more – except to ensure that no donor engages in too much political speech, an interest the Court has rejected.
Mr. Levey emphasized that CFJ’s McCutcheon brief is “part of CFJ’s larger mission of battling judicial activism.  Prior to the Roberts Court, the Supreme Court functioned more as legislators than judges when it came to campaign finance cases, bending the First Amendment to accommodate the push for more and more restrictions on campaign contributions.  The result was 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.  We are very hopeful that the Supreme Court will take an important step in McCutcheon towards ending this constitutional wrong.”
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 request.

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