May 17, 2013

CFJ: Overturn Contribution Limits

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 rejected.

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 views.

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 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 role that political parties play in the political process, a role that is being weakened by McCain-Feingold’s aggregate limits.”

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.