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Is McCutcheon v. FEC The Next Citizens United?

by Alex Gauthier, published

The Supreme Court announced its decision Tuesday to hear McCutcheon v. Federal Election Commission. It will likely become another landmark case defining campaign finance and -- by extension -- the future of national elections. Share the news: Tweet

At stake are contribution limits to state and national party committees as well as PACs, which are biennially capped at $123,200 in aggregate. An individual can donate to many different party committees or candidates, but cannot exceed an overall donation limit which resets every two years.

McCutcheon's argument falls along similar lines as the Citizens United case. He contends his First Amendment rights are being infringed upon by not being able to donate to as many party committees as he would like. Tweet it: Tweet

As it follows, eliminating the biennial aggregation restrictions could allow a single individual to donate over $1 million to political causes in one election cycle -- or two years -- according to Democracy 21's Fred Wertheimer.

Put simply, national and state/local party committees can receive a maximum of $32,400 and $10,000, respectively, each year from an individual donor. Yet, one person cannot exceed the $123,200 limit.

A ruling in favor of McCutcheon would likely remove the biennial aggregation cap. In effect, this would raise the maximum annual donation limit to around $500,000 per year, which would nearly quadruple the current limit.

There remains a clear distinction, however, between the Citizens United case and McCutcheon v FEC. An important rationale for the majority opinion, authored by Justice Kennedy, was:

"The governmental interest in preventing corruption and the appearance of corruption inadequate to justify on independent expenditures.” Tweet quote: Tweet

This might be a key detail in McCutcheon's case. If significantly increasing party contribution limits is shown to have a corrupting influence or promote the appearance of corruption, the Supreme Court would rule against him.

It remains to be seen how party contributions will be recognized by the high court, since non-coordination between Super PACs and candidates was a critical concept behind Super PACs being able to infinitely raise funds.

Party committees have traditionally been under more scrutiny when it comes to fund raising and were not regarded as independent and thereby labeled as 'coordinated communications.' This subjects them to stricter regulations.


The McCutcheon of McCutcheon v. Federal Elections Commission is Shaun McCutcheon of Alabama. He is a conservative activist and chairman of Conservative Action Fund, "a Super PAC that promotes conservative Republicans," according to the Alabama GOP. Share this article: Tweet

Mr. McCutcheon spent $33,088 on conservative candidates and committees -- most of which ($20,000) went to the Alabama Republican Party -- during the 2012 elections. Yet, he wants to be able to spend more on future elections.

He is currently prohibited from breaching the aggregate limit on biennial committee contributions, which is capped at $74,600.

Looking Ahead

Although the Republican National Committee is also represented in the case, both Democratic and Republican Party committees are forced to turn down donations every year due to these limits. This means a decision in favor of the plaintiffs could dramatically benefit both parties, not only the GOP. Share the news: Tweet

The law that will be challenged is the Bipartisan Campaign Reform Act of 2002. The BCRA, also known as the "McCain-Feingold Act," established the current biennial limits for donations McCutcheon argues are unconstitutional.

Instrumental to how the Supreme Court will decide the McCutcheon case is Buckley v Valeo (1976), which is the cornerstone for campaign finance law and the primary source used to rationalize the infamous Citizens United decision.

Justices Roberts, Scalia, Kennedy, Thomas, and Alito ruled in favor of Citizens United in the 5-4 decision. The dissenters were Stevens, Ginsburg, Breyer, and Sotomayor.

Stevens was replaced by Kagan in 2010, but McCutcheon's free speech argument could very well resonate with the previous majority, making a ruling in favor of the plaintiffs more likely.

Unsurprisingly, election spending watchdogs like the Campaign Legal Center are critical of a possible expansion of money in politics. Senior counsel for the Campaign Legal Center, Tara Malloy, said in a statement:

“It has become readily apparent that there are a number of justices who are willing to usurp Congress’s role as legislator when it comes to matter of campaign finance. An aggregate contribution limit was passed in the wake of the Watergate money scandals and was upheld in the 1976 Supreme Court decision Buckley v. Valeo.” Tweet at @CampaignLegal: Tweet

Even though it is primarily Republicans who are backing the plaintiffs, the Democratic Party and all political action committees would benefit from more relaxed contribution limits. Raising the limit on the amount one individual can donate each election cycle allows fewer donors to contribute more money.

The decision could not only send skyrocketing campaign costs even higher, but strengthen party affiliated coffers as well, potentially squeezing out third parties that don't have recognized party committees.

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