Citizens United Did Not Equate Money with Speech—But McCutcheon Will

Last Tuesday, the Supreme Court of the United States heard oral arguments in McCutcheon v Federal Election Commission (McCutcheon). At issue are provisions of the Federal Election Campaign Act, 2 USC § 431 (the Act), that impose a biennial limit on individual campaign contributions. This lawsuit—brought by Shaun McCutcheon, a wealthy Alabama businessman and serial Republican donor, with Senator Mitch McConnell and the Republican National Committee (RNC) as amicus curiae—challenges this law’s constitutionality on First Amendment grounds.

Background

Under the Act, an individual may contribute up to US$2,500 to any federal candidate and up to $46,200 to all federal candidates during a two-year election cycle. The plaintiffs, who do not challenge the $2,500 limit on individual contributions, contend that the cap on aggregate contributions violates McCutcheon’s right to freely associate with as many candidates as he wants. Should he and the RNC succeed in the lawsuit, individuals would be free to directly contribute millions of dollars (estimated to be in the range of $3.5 million) to political candidates during each election cycle.

This is the latest entry in the war of attrition that has steadily been waged on federal election legislation over the past four decades. In Buckley v Valeo, 424 US 1 (1976) (Buckley), the Court struck down amendments to the Act that limited campaign expenditures, independent expenditures by individuals and groups, and personal expenditures by candidates. Here, the Court held that while restrictions on direct contributions to candidates were permissible, limitations on campaign expenditures were an unacceptable restriction on free speech. The rationale for this distinction was that direct contributions can give rise to quid pro quo bartering between political actors and contributors, thereby creating a sufficiently compelling government interest in restricting free speech. Conversely, restrictions on how a campaign can spend money that it already possesses would not further this government objective and, as a result, these restrictions were held to be an unacceptable breach of First Amendment interests.

Breaching the Buckley Distinction

This division between political spending and contributions provided the jurisprudential foothold upon which the Court decided Citizens United v Federal Election Commission, 558 US 310 (2010) (Citizens United). This case famously brought the White House and the Roberts Court into open conflict, culminating in a direct rebuke of the decision by President Obama in his 2010 State of the Union Address.

Citizens United is popularly viewed as the case that conflated money with speech and opened the floodgates for corporations to donate unlimited amounts of money to political campaigns. It is important to note, however, that Citizens United dealt only with the ability of third party organizations like corporations and labour unions to independently spend money in support of a particular candidate during election campaigns. It may very well be the case that pouring vast sums of money into advertisements on the part of political action committees (PACs) in support of a particular candidate is no different than making direct contributions to that candidate, but it is worth noting that this ruling aligned fully with the contributions-spending dichotomy set out in Buckley. Further, while the net result of Citizens United may be negative, it’s hard to argue that legislation restricting the ability of independent organizations to endorse a candidate in their preferred medium is not a restriction on expression. McCutcheon, on the other hand, represents a breach—albeit a limited one—of the spending-contributions distinction.

Oral Arguments

The positions staked out between the justices during oral argument were familiar ones. Moments into the pleadings of Erin Murphy, counsel for the plaintiff, the liberal wing of the Court went on the attack. Justices Breyer and Kagan focused their criticism on the possibility that, should aggregate contribution limits be removed, individuals could donate large sums of money to a wide range of candidates or PACs, who could then channel these resources to only the most contested congressional campaigns—a hypothetical that Justice Alito dismissed as unrealistic.

Justice Scalia made the stunningly cynical argument that politicians were unlikely to have any greater sense of ingratiation towards a direct contributor than to “a PAC which is spending enormous amounts of money in his district or in his state for his election” (at 52). Not only does this point concede that direct contributions are likely to facilitate the kind of quid pro quo influence that was central to the holding in Buckley, but also that the Court’s subsequent ruling in Citizens United likely produced a similar effect. This teed up Justice Kagan for one of her characteristic zingers: “I suppose that if this Court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law” (at 53). Laughter ensued.

Among the five conservative justices, Chief Justice Roberts appeared to be the only judge genuinely concerned about the prospect of a small number of wealthy individuals extracting political favours from elected officials, one he weighed against the First Amendment interest at stake. In an exchange with Solicitor General Verilli, the Chief Justice stated:

I appreciate the argument you are making about the 3-point-whatever million dollar check and the need for the aggregate limits to address that. I understand that point. But what do you do with the flip side? I mean, you can’t pretend that that is pursued with no First Amendment cost quite apart from the one that’s there (at 46-47).

The Chief repeatedly challenged Ms. Murphy and Solicitor General Verilli to provide a “framework” for balancing the infringed First Amendment interests with the anti-corruption objectives of the legislation. In other words, Roberts was grasping for a principled way of delineating the scope of the right in the context of campaign finance.

Justice Ginsburg may have provided the First Amendment hook that Roberts was looking for. The First Amendment’s vaulted status within American constitutional jurisprudence is supported by the same kinds of rationales present in section 2(b) Charter jurisprudence—that is, the role that speech plays in the truth-seeking process and in democracy. In an exchange with Bobby Burchfield, counsel for Senator McConnell, Justice Ginsburg made the point that “these limits promote expression, promote democratic participation, because … the candidate would then have to try and raise money more broadly in the electorate” (at 18-19). By returning to first principles, it is possible that Justice Ginsburg was playing to the Chief’s apparent desire to construct a coherent free speech framework and find a rationale for upholding the law.

Most debates regarding freedom of expression ultimately boil down to a conflict between free speech utilitarianism—wherein speech is only valuable insofar as it can produce useful social outcomes—and free speech absolutism, which views with extreme skepticism any government attempt to differentiate between useful and non-useful types of speech. The recent line of First Amendment cases has very much skewed towards the latter, and should it continue along this trajectory, Mr. McCutcheon will most likely succeed in his claim. However, Citizens United precipitated a considerable political backlash, and the present case could paint the Court in an even more partisan light—it doesn’t help that the Republican Senate Minority Leader is an amicus curiae. By joining the four liberal justices to uphold key provisions of the Patient Protection and Affordable Care Act in National Federation of Independent Businesses v Sebelius, 567 US (2012), Roberts proved that he has some regard for the institutional integrity of the Supreme Court and deference to the political process. It will be interesting to see whether he reprises this role as institutional peacekeeper in McCutcheon.