First Amendment - Freedom of Speech - Aggregate Contribution Limits

Harvard Law Review, November 2014 | Go to article overview

First Amendment - Freedom of Speech - Aggregate Contribution Limits


In Buckley v. Valeo, (1) the Supreme Court subjected limits on political contributions to a lower level of constitutional scrutiny than limits on political expenditures. (2) Some believe that the Court will eventually reconsider this foundational distinction between contribution and expenditure limits, thereby threatening the per-candidate contribution limits (or "base" limits) upheld in Buckley. (3) Last Term, in McCutcheon v. FEC, (4) the Supreme Court held that Congress may not limit the aggregate amounts that donors can contribute to candidates and political committees during an election cycle. In his separate concurrence, Justice Thomas argued that Chief Justice Roberts's plurality opinion framed the First Amendment burden imposed by the aggregate limits in a way that undermines Buckley's characterization of contributions as less expressive and therefore less worthy of protection than expenditures. (5) However, understanding the plurality opinion in light of the unconstitutional conditions doctrine--shades of which can be seen in much of the Roberts Court's jurisprudence--provides an alternative reading of the plurality opinion that is reconcilable with Buckley's key distinction.

In the 2011--2012 election cycle, Shaun McCutcheon had contributed $1776 to each of fifteen candidates for federal office and wanted to contribute to twelve additional candidates. (6) McCutcheon also wanted to contribute "enough money to [three national party committees] to bring his total contributions up to $25, 000 each." (7) Each of these contributions would have been compliant with the base contribution limits restricting the amounts that individuals may give to a particular candidate, party committee, or political action committee (PAC).(8) Making all of these contributions, however, would have violated the aggregate limits on how much an individual may contribute in total during an election cycle to all federal candidates and to all party and political action committees. McCutcheon--joined by the Republican National Committee, which asserted a right to receive contributions of the sort McCutcheon wanted to make--brought suit in the U.S. District Court for the District of Columbia claiming that the aggregate limits were unconstitutional under the First Amendment. (10)

A unanimous three-judge panel of the district court granted the FEC's motion to dismiss. Judge Brown (11) assumed that the base limits "[were] valid expressions of the government's anticorruption interest" and asserted that the court could not "ignore the ability of aggregate limits to prevent evasion of the base limits." (12) In particular, the court envisioned a scenario in which a donor might give a massive check to a joint fundraising committee comprising numerous party committees and candidates, each of whom could then legally transfer their share of the check to a single recipient, resulting in an effective contribution far in excess of what could be donated directly. (13) The court therefore concluded that the aggregate limits were justified as an anti-circumvention measure, preventing evasion of the concededly constitutional base limits. (14) The plaintiffs, as authorized by law, appealed directly to the Supreme Court, which lacked "discretion to refuse adjudication of the case on its merits." (15)

The Supreme Court reversed, with Chief Justice Roberts writing a plurality opinion and Justice Thomas concurring in the judgment. Because Buckley upheld aggregate limits in 1976, (17) the plurality sought to justify its reconsideration of that holding. (18) Most importantly, the plurality took issue with Buckley's characterization of aggregate limits as a "quite modest restraint upon protected political activity. (19)" Chief Justice Roberts reasoned that "[t]he Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse." (20) The aggregate limits required a donor to "limit the number of candidates he supports, and . …

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