Citizens United 2.0 – U.S. Supreme Court to lift aggregate limits to campaign contributions?


Posted by AzBlueMeanie:

GavelOn Tuesday, the U.S. Supreme Court granted certiorari in McCutcheon v. Federal Election Commission (docket 12-536), a case in which the U.S. Supreme Court could open the door to even more money in politics than it did in its disastrous 2010 decision, Citizens United v FEC. If the court sides with the challengers in McCutcheon v FEC, political power and influence in America will further be concentrated in the hands of wealthy elite plutocrats.

Lyle Denniston at provides a brief summary, Campaign donation issue reopened:

Giving itself the option of changing its mind on government power to
limit campaign contributions, the Supreme Court on Tuesday set the stage
for review of the constitutionality of a specific donation ceiling set
by federal law, but a larger issue looms in the background. Since the
Court’s landmark opinion in 1976 in Buckley v. Valeo,
it has always given government more leeway to control contributions to
candidates or political organizations than over spending by candidates
or by independent political activists. That differing
constitutional treatment potentially is at stake in the new case
, McCutcheon v. Federal Election Commission (docket 12-536).

That was one of two cases the Court on Tuesday accepted for review, with
both expected to be argued and decided at the Justices’ next Term,
starting in October.

* * *

By reopening the continuing national controversy over campaign
finance, in the aftermath of a presidential campaign in which vast sums
of money were given and spent, the Court did not promise explicitly that
it would reconsider its decision in the Buckley case. What is
at stake directly is the constitutionality of the two-year ceilings
that federal law sets on what an individual can give during a campaign
for the presidency or Congress, in donations to candidates, to political
parties, or to other political committees.

However, the challengers to the two-year caps have argued in their
appeal that, if those ceilings are found to survive the analysis of
contributions limits in the Buckley decision, then the Supreme
Court should reconsider that distinction and strike it down. The 1976
ruling found that government had greater power to limit contributions
than spending, because donations had more potential to corrupt the
political process.  The anti-corruption rationale, however, has been
weakened by the Court since then.

The challengers in the new case are Shaun McCutcheon, an Alabama
political activist and businessman who regularly gives money to
Republican candidates and causes, and the Republican National
Committee.   He wants to give more than the ceilings allow, and the RNC
wants to be allowed to accept higher donations.

The current Supreme Court has shown in recent years that it is not
averse to the idea of reconsidering some of its most important rulings
on campaign finance, as it did rather spectacularly in 2010, when it
issued the hotly controversial decision in Citizens United v. FEC,
declaring unconstitutional any limit on spending during federal
campaigns by corporations or labor unions, so long as they spent the
money independently of a candidate or candidate organization.  That was a
spending, not a contribution, decision. The new McCutcheon case is only about contributions.

So far, the current Court has given no indication that it is ready to reconsider the distinction drawn in the Buckley
case, but that has not deterred challengers to campaign finance
restrictions from repeatedly attempting to raise the issue anew
.  That
is what McCutcheon and the RNC seek to do.

After taking into account adjustments for inflation, federal law set
dollar ceilings for the 2011-2012 campaign season at $2,500 per election
(primary and general elections are treated separately) to any candidate
or a candidate’s campaign organization, no more than $30,800 per year
to a national political party, no more than $10,000 per year to a state
political party, and no more than $5,000 to any other political
committee. The two-year ceiling for that same period — and this
is what the new appeal is challenging – is set at $117,000 overall. That is broken down into $46,200 to a candidate for federal office and
$70,800 to non-candidate entities, including national political parties
and state political parties, and non-party committees. That second
amount was restricted in that no more than $46,200 could be given to a
state party or a non-candidate committee.

McCutcheon has said that he is willing to stay within the per-year
contribution limits set by law, but he wants to give more than the
two-year overall limit   In the 2011-2012 campaign, he wanted to donate
to candidates some $8,200 beyond the two-year limit. Had he done all
that he wanted to do in donations to parties or other political
entities, his donations would have exceeded the two-year ceiling by

Brenda Fischer at the Center for Media and Democracy's PR Watch adds, Citizens United 2.0? Supreme Court Could Further Open Door to Money in Politics:

Post-Citizens United, wealthy donors can now give unlimited
amounts to Super PACs, but still must comply with limits on donations to
candidates and political parties. Under current law, individuals,
corporations, and unions may give no more than $2,500 to any one federal
candidate running for office and up to $46,200 spread among multiple
candidates. Donors may also give up to $70,800 a year to a political
party's national committee (like the Republican National Committee) and
traditional PACs, for a total of $117,000.

The case before the U.S. Supreme Court is challenging those aggregate limits.

Shaun McCutcheon, an Alabama resident, said he wanted to give a total
of $75,000 to party committees and $54,400 to candidates in the 2012
elections. The other plaintiff, the Republican National Committee (RNC),
wants to receive contributions beyond the cap. If the Supreme Court
sides with the plaintiffs, it would be the first time in history that it
has declared a direct contribution limit unconstitutional.

Democracy 21 describes the stakes this way:

Absent the aggregate overall limit on contributions by an
individual, President Obama, House Speaker Boehner or any other federal
officeholder or candidate would be free to solicit, and an individual
free to contribute, a single check to a national party of $1,194,000 for
a two-year election cycle.

The national party in turn could spend the entire million dollar-plus
donation to support the officeholder who solicited the donation from
the contributor.

Similarly, President Obama, House Speaker Boehner or any other
federal officeholder or candidate could solicit, and an individual could
contribute a single check of as much as $2,433,600 to be divided up
among every federal candidate in their party running for Congress.

Candidates who are the beneficiaries of such a large contribution "will know precisely where to lay the wreath of gratitude," found DC District Court Judge Janice Rogers Brown in a decision last year upholding the aggregate limits.

Judge Brown, who was appointed by President George W. Bush and is
generally considered a conservative jurist, rejected assertions by
McCutcheon and the RNC that the aggregate limits are "unconstitutionally
low and unconstitutionally overbroad." The Supreme Court will consider
an appeal of her decision.

The Supreme Court had previously upheld similar limits on grounds
they were needed to prevent donors from circumventing individual
contribution limits, for example by giving to a political committee
likely to use the funds for a particular candidate.

The McCutcheon plaintiffs are not challenging the $2,500
individual contribution limit, but some are concerned that the Supreme
Court's five justice conservative majority will go beyond the scope of
the case and strike down all contribution limits. The Court made such a
radical move in Citizens United.

* * *

Campaign finance reformers are rightly concerned that lifting the
aggregate cap on contributions would further concentrate political
influence in the hands of an elite few.

But the McCutcheon plaintiffs have their defenders. Perhaps most oddly, the Wall Street Journal calls the case a "chance to liberate political speech from the clutches of a narrow political class."

It is true that politics is dominated by "a narrow political class."
But it is not clear how lifting contribution caps will "liberate" or
democratize our dollar-dominated democracy. Only a tiny sliver of one
percenters are in a position where they can spend beyond the
already-existing $117,000 cap on donations to candidates and party
committees. If the court sides with the McCutcheon plaintiffs,
it would give an even smaller circle of elites even greater influence
over public policy — at the expense of everyone else, and our

UPDATE: Another case that has been relisted for the Court's conference on Friday is Danielczyk v. United States, 12-579, concerning the Federal Election Campaign Act’s ban on corporate contributions to candidates for federal office. reports:

The district court struck down that section of the Act (2 U.S.C.
§ 441(b)(a)) as unconstitutional under the First Amendment following the
Court’s 2010 decision in Citizens United v. FEC.  The Fourth Circuit reversed, holding that pre-Citizens United precedent, namely FEC v. Beaumont
(2003), supported the Act’s ban.  In his petition, William Danielczyk,
whose grandfather was “Daniels” before a horrible typewriter accident at
Ellis Island, says that strict scrutiny should apply to restrictions on
the right to make campaign contributions, and that the ban in Section
441(b) unconstitutionally abridges corporations’ free speech rights.

Should the Court grant certiori, it may indicate that it will eliminate the ban on corproate contributions to candidates.

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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.