Another Blockbuster Season Ahead for the Supreme Court
In its 1976 landmark ruling in Buckley v. Valeo, the justices struck down federal limits on individual expenditures but upheld them on contributions. Limits on expenditures, they said, imposed a much greater burden on protected speech than limits on contributions which, while somewhat burdensome, posed a significant threat of corruption or the appearance of corruption. In Citizens United v. FEC, a 5-4 court took an additional and giant step towards deregulating money in campaigns by freeing from government restrictions corporate expenditures made independent of a candidate. Those expenditures, said a divided court, did not pose the threat or appearance of quid pro quo corruption.
If the Roberts Court continues its deregulatory bent, a path it carved beginning in 2006, the pressing question for campaign finance reformers is whether contribution limits are no longer sacred.
At issue in McCutcheon and Republican National Committee v. Federal Election Commission are so-called aggregate limits on contributions: the total amount an individual donor can contribute to party committees, PACs and federal candidates, in a two-year election cycle ($74,600 to all party committees and PACs; $48,600 to federal candidates).
Alabama businessman and GOP donor Shaun McCutcheon and the RNC attack the aggregate limits arguing that the justices should apply the Constitution's most searching review—strict scrutiny—and strike them down. They contend those limits are no longer necessary to prevent circumvention of the law's base limits on contributions (the amount one person can give to a single candidate). The circumvention argument was the justification adopted by the Buckley court.
And at least one organization, the libertarian Cato Institute, has called on the justices to overrule Buckley because, it says, the distinction between contributions and expenditures is "untenable and unworkable."
"If the aggregate limits are struck down, a president, House speaker, Senate majority leader or other federal officeholder will be able to solicit multimillion dollar contributions from individual donors, and donors will be able to buy corrupting influence over federal officeholders and government decisions with these huge contributions," warned Fred Wertheimer, president of Democracy 21, a campaign finance reform organization.
The week after the McCutcheon arguments, the justices return to affirmative action in a case that is the mirror image of the last term's challenge to the consideration of race in the admissions policy of the University of Texas: Fisher v. U.S.
The case, Schuette v. Coalition to Defend Affirmative Action, involves a 2006 constitutional amendment approved by Michigan voters that bans affirmative action in the state. A closely-divided U.S. Court of Appeals for the Sixth Circuit struck down the ban because, it held, affirmative action is a constitutional remedy and the ban disadvantages minorities seeking access to that remedy on account of their race in violation of equal protection.
"Unlike Fisher, this case does not deal with what is a constitutional way to promote diversity," said Joshua Civin of the NAACP Legal Defense and Educational Fund. "The Sixth Circuit said the voter initiative rigged the political process to disadvantage minorities. Allowing either side to manipulate the system creates problems."
The appeals court relied on a Supreme Court precedent now vulnerable to attack in the case: Washington v. Seattle School District No. 1 (1982).