Contribution limits vs. free speech

Luige del Puerto//October 23, 2013

Contribution limits vs. free speech

Luige del Puerto//October 23, 2013

gavel-moneySupreme Court campaign finance case could change Arizona elections

While Arizona’s higher campaign contribution limits hang in the balance, a case before the U.S. Supreme Court might achieve what the state law’s supporters seek – give people the ability to contribute more to their favorite politicians and allow candidates to raise bigger amounts from backers.

At issue in McCutcheon v Federal Election Commission is whether the aggregate limits for contributions to federal candidates and political committees violate people’s free speech rights.

The Supreme Court heard oral arguments in the case earlier this month.

McCutcheon deals with federal aggregate limits, but many observers say if the justices were to side with the plaintiffs, their decision would reverberate throughout the states and directly affect local laws that cap aggregate limits.

Others believe that the case’s fallout could be much wider and deeper, just as Citizens United, which allowed corporations and labor groups to directly engage in electioneering, dramatically altered states’ election laws.

Some even postulate that McCutcheon, if successful, would obliterate all campaign finance contribution caps, not only the aggregate limits.

Such a ruling would have a direct bearing on Arizona, where lawmakers recently eliminated the aggregate campaign caps for individuals and political committees.

But the new law, HB2593, is currently on hold. The Arizona Court of Appeals blocked its implementation this month, pending a full review of the case. That decision sent candidates and their strategists scrambling to determine what the court decision bodes, especially since the new law was in effect for a month and candidates had already begun collecting funds above the old contribution limits.

This is where McCutcheon comes in.

Shaun McCutcheon, an Alabama businessman and GOP supporter, had contributed $1,776 each to 15 congressional candidates, in the 2012 election cycle. He wanted to give $1,776 to 12 other candidates, but was precluded from doing so because of the limitation on total amounts individual may give to campaigns.

As of June 2012, the wealthy businessman had also given money to several political committees, including the Republican National Committee, the National Republican Senatorial Committee and the National Republican Congressional Committee. He wanted to give more to committees, but the total amounts would have put him above the limits.

Consequently, he challenged the caps, arguing they violate his and the Republican Party’s First Amendment rights.

Strict scrutiny

Depending on the precise language employed in the opinion on McCutcheon, it could alter election laws here as well, legal experts and observers of the U.S. Supreme Court said.

Justin Levitt, an associate professor of law at Loyola Law School in Los Angeles, said the court’s rulings on campaign finances haven’t really distinguished between federal law and state law.

“They have been deciding these cases based on [whether the] regulation is within legislative power or it violates the First Amendment, and that’s going to be true whether it’s federal law or state law,” he said.

Joel Gora, a professor at Brooklyn Law School, also told the Arizona Capitol Times that depending on the justices’ reasoning, it’s probable that, if they rejected the federal aggregate limits as unconstitutional, their decision would act as a strong precedent for invalidating the laws in states that similarly have aggregate caps.

Subsequently, a decision favoring McCutcheon would likely compel state governments to conform their laws to the court’s order or risk facing a lawsuit that forces them into compliance.

A lot would depend on the final option’s exact wording, but Gora said if the justices applied “strict scrutiny” when looking at base contributions, laws capping them “would definitely require more justification by government.”

And while Levitt and others don’t anticipate the Supreme Court to reject all the limits as unconstitutional, some see it coming.

Writing in Campaign Legal Center blog, Trevor Potter postulated that McCutcheon threatens all contribution limits, and not just the aggregate ones.

That’s because U.S. Sen. Mitch McConnell, R-Kentucky, also asked the court to employ the same standard of review when scrutinizing campaign contributions.

This all goes back to Buckley v. Valeo, the 1976 case that found that campaign spending burdened free speech far more than campaign contributions. This means restrictions on political spending limit a person’s political speech and served no other purpose than to limit speech.

Contributions, on the other hand, are regarded more as a limit of a person’s ability to support another’s speech – meaning it’s more of an association than a direct speech limitation.

Buckley gave rise to the current conditions under which contributors, candidates and political committees operate – spending is unlimited while contribution is capped, and more significantly, “strict scrutiny” is applied to laws that deal with the former and a less vigorous standard is applied to the latter.

But if the court were to apply the same “strict scrutiny” standard to both, Potter said it would encourage legal challenges even to laws that only cap individual or base limits, making it harder to defend them.

“The McCutcheon case – and Senator McConnell’s amicus brief – thus may appear to target a single discrete law, but actually threatens to overturn a core principle of American campaign finance law since Buckley v. Valeo in 1976,” Potter said.

Reading tea leaves

Tom Collins, executive director of the Arizona Clean Elections Commission, said while it’s possible that the Supreme Court would step beyond the narrow questions posed by McCutcheon, that’s a less likely possibility. The commission is a plaintiff in the case targeting HB2593.

Collins noted that Supreme Court observers have been closely watching Chief Justice John Roberts, and the academic consensus is that he moves by increments rather than in dramatic swoops.

The lawyer said the justices are conscious of their status as unelected arbiters, suggesting that they’re averse to overriding actions by the country’s elected bodies.

Collins said it’s less likely that the justices would completely jettison the current campaign finance regime and blow wide open the base individual caps, in addition to striking down the aggregate limits.

“The way the case is framed, they don’t have to go there,” he said, adding that courts tend to answer the narrowest questions before them.

Levitt agreed, saying other cases asked whether individual or base caps should be maintained in a more direct and cleaner manner than McCutcheon, and the Supreme Court had refused to entertain them.

“It’s always hard to read tea leaves, particularly after Citizens United. But my intuition is that they are not going to go after that in McCutcheon,” Levitt said.

In fact, he said he doubts whether the justices would treat all federal aggregate caps alike. Federal rules cap the total amounts that individuals, political parties and PACs may contribute.

Finally, he said he doesn’t think the courts would revisit the bifurcated standards in scrutinizing campaign finance laws – meaning the more rigorous standard for spending rules and a less rigorous one for contribution laws.

Gora, the Brooklyn Law School professor, said a decision favoring McCutcheon would likely compel state governments to change their laws and conform to the court’s order or risk facing a lawsuit that forces them into compliance.

A lot would depend on what justices exactly say, but Gora said if the justices applied “strict scrutiny” when looking at base contributions, laws capping them “would definitely require more justification by government.”

Disclosure, disclosure, disclosure

Secretary of State Ken Bennett, Arizona’s top election officer, isn’t worried about the possibility of all contribution limits going away, so long as strong disclosure laws are in place to ensure that the public knows who spends money – and how much – to influence electoral decisions.

“To me, the three most important things on campaign finance is disclosure, disclosure, disclosure,” Bennett said.

“If caps were eliminated completely, if that condition was replaced with a meaningful disclosure law so that you couldn’t hide contributions through IEs or private corporations or Citizens United type stuff where there aren’t any caps and there isn’t much disclosure… that’d probably be a good thing,” he said.

Meanwhile, Snell & Wilmer attorney Eric Spencer said McCutcheon, if successful, could act as a counterweight to Citizens United.

He said Citizens United resulted in the shifting of money toward independent expenditure groups, which presumably have begun to wrest control of campaign messaging away from political parties and candidates.

Spencer said a favorable McCutcheon ruling could add “vitality” to candidate committees and political parties, whose influence has supposedly been dissipating.

But Collins rejected the assertion, arguing that, when it comes to contribution limits, the legal test is not over control of campaign messaging, but whether candidates can run competitively.

“I don’t know that folks are going to stop making contributions to independent expenditure entities just because they can potentially give more to candidates,” Collins said.


Federal individual contribution limits in 2013-2014
To each candidate per election – $2,600
To national party committee per calendar year – $32,400
To state, district and local party committee per calendar year – $10,000 (combined limit)
To any other committee per calendar year – $5,000
Overall biennial limits to all candidates – 48,600
Overall biennial limits to all political action committees and parties – $74,600
Total overall biennial limits – $123,200