From Buckley to McCutcheon: A Brief History
A Brief History of the Supreme Court and Contribution Limits on Individuals
By: Fred Wertheimer
For almost four decades, the Supreme Court consistently has held that federal limits on contributions to candidates and parties are constitutional as a means to prevent corruption.
On October 8, the Supreme Court will face this question once again.
In McCutcheon v. Federal Election Commission, plaintiffs Shaun McCutcheon and the Republican National Committee are challenging the constitutionality of the overall limits on the total amount an individual donor can contribute to all party committees and all federal candidates in a two-year election cycle. The case will be heard by the Supreme Court on October 8.
In September 2012, a federal district court three-judge panel in Washington, DC rejected the plaintiffs’ constitutional challenge. The panel found that the overall contribution limits prevent individuals from contributing very large sums of money each election cycle, and are necessary to prevent massive circumvention of the underlying individual contribution limits.
The district court panel cited the fact that the Supreme Court specifically upheld the constitutionality of overall contribution limits in Buckley v. Valeo. The Court in Buckley stated, “The limited, additional restriction on associational freedom imposed by the overall ceiling [was] thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.”
In a Supreme Court amicus brief filed in the McCutcheon case, Representatives Chris Van Hollen (D-MD) and David Price (D-NC), said the Court faced the following question:
This case starkly poses the question whether the competition for the massive individual contributions that would be permitted without aggregate contribution limits would threaten to create the reality or appearance of corruption. This Court’s decisions leave no doubt that the answer is yes. Striking down these limits would create obvious possibilities for even the most blatant forms of corruption: solicitations for hundreds of thousands or millions of dollars, creating the opportunity for transactions exchanging contributions for anticipated political favors from officeholders. While there may be disagreement about the precise boundaries of corruption and its appearance, it has long been settled that such arrangements, at least, fall within its core.
Under current law, an individual is limited to contributing a total of $74,600 to all political party committees and PACs, and a total of $48,600 to all federal candidates, in a two-year cycle.
If the Supreme Court were to strike these overall contribution limits, individual donors, through the use of “joint fundraising committees,” would be allowed to give million-dollar and multimillion-dollar contributions to directly support candidates and parties. Federal officeholders and candidates would also be allowed to solicit these huge contributions. (See Democracy 21 Fact Sheet released on September 24.)
Buckley v. Valeo (1976)
In 1976, the Supreme Court in the landmark campaign finance case of Buckley v. Valeo upheld the constitutionality of federal contribution limits, including overall contribution limits, enacted in 1974 in response to the Watergate scandals.
The Supreme Court held that large contributions create opportunities for corruption and the appearance of corruption and therefore can be subject to limits, consistent with the Constitution.
The Court said in Buckley:
Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with “proven and suspected quid pro quo arrangements.” But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed. (Emphasis added).
The Court in Buckley drew a distinction between limits on contributions and limits on expenditures that remains with us today. The Court held that contributions can be limited in order to prevent opportunities for corruption and the appearance of corruption of our government. The Court also held that expenditures by individuals made independently from candidates and parties do not pose a threat of corruption and therefore cannot be limited.
In Buckley, the Court noted that expenditures are a form of direct political expression, while contributions to candidates and parties involve a donor giving money to another person to spend on speech. A contribution, therefore, is indirect speech or speech-by-proxy. As the Court explained in Buckley, “a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communications.”
The overall contribution limits do not prevent any individual from making expenditures in elections, i.e., from spending money on direct political speech, which they are free to do in unlimited amounts. Instead, the overall limits serve to limit how much money a donor can give to others, whether candidates or parties, for the recipient to spend on speech.
The overall limits, furthermore, do not restrict how many candidates and parties an individual can support, but instead affect the size of such contributions.
The overall contribution limits fall squarely within the line of past cases in which the Court has upheld the constitutionality of contribution limits to prevent corruption and the appearance of corruption.
Without the overall limits, wealthy donors, through the use of joint fundraising committees, would be permitted to give million-dollar and multi-million dollar contributions to directly support federal candidates and parties. These are precisely the kind of contributions that the Supreme Court warned in Buckley result in an inherently corrupt system and can be limited.
Since the Buckley decision, the Supreme Court has continued the Buckley distinction between limits on contributions and limits on expenditures and has consistently upheld the constitutionality of federal contribution limits.
McConnell v Federal Election Commission (2003)
In response to the “soft money” scandals of the 1990s, Congress in 2002 passed legislation to prohibit the national parties from raising “soft money,” or large contributions in excess of the federal limits on the amounts that could be contributed to political parties.
In 2003, the Supreme Court in McConnell v. Federal Election Commission upheld the constitutionality of this soft money ban. The Court said that “soft money” contributions to the parties were “likely to create actual or apparent indebtedness on the part of federal officeholders.”
The Court said:
The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible. For nearly 30 years, FECA has placed strict dollar limits and source restrictions on contributions that individuals and other entities can give to national, state, and local party committees for the purpose of influencing a federal election. The premise behind these restrictions has been, and continues to be, that contributions to a federal candidate’s party in aid of that candidate’s campaign threaten to create—no less than would a direct contribution to the candidate—a sense of obligation. This is particularly true of contributions to national parties, with which federal candidates and officeholders enjoy a special relationship and unity of interest.
If the overall limits were struck down in McCutcheon, individual donors would again be able to give the kind of six and seven-figure contributions to political parties that resulted in the “soft money scandals” of the 1990s, that were banned by Congress in 2002 and that the Supreme Court held in McConnell in 2003 could be constitutionally prohibited.
Such contributions would constitute, in the words of the Supreme Court in McConnell, “large contributions to a national party [that] can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders.”
The law passed in 2002 by Congress also prohibited federal officeholders and candidates from soliciting “soft money” or large contributions. The Supreme Court in McConnell upheld the constitutionality of the solicitation ban, stating:
Large soft-money donations at a candidate’s or officeholder’s behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder.Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself.
Justice Kennedy, who in McConnell voted with the minority to find the soft money ban unconstitutional, also voted with the 7 to 2 majority in McConnell that upheld the constitutionality of the solicitation ban.
In a separate opinion, Justice Kennedy recognized the dangers of corruption that existed in officeholders and candidates soliciting large contributions:
I agree with the Court that the broader solicitation regulation does further a sufficient interest. The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates or officeholders solicitation of contributions are, therefore, regulations governing their receipt of quids. This regulation fits under Buckley’s anti-corruption rationale.
If the overall limits were struck down in McCutcheon, it would allow federal officeholders and candidates again to solicit the large contributions that the Supreme Court said in McConnell “give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder.”
Randall v. Sorrell (2006)
In 2006, the Supreme Court in Randall v. Sorrell reaffirmed the Buckley decision and the distinction it drew between limits on contributions and limits on expenditures.
The Court held in Randall that the mandatory limits on candidate expenditures in a Vermont statute were unconstitutional restrictions on speech in accord with the Buckley decision. The Court also reaffirmed the position in Buckley that limits on contributions to candidates were constitutional, except where the contribution limits were too low to allow candidates to communicate effectively with voters.
The Court found in Randall that the contribution limits in the Vermont statute, the lowest in the country, were too low to allow candidates to effectively communicate and struck down the limits. The Court did so, however, within the framework of Buckley that contribution limits were constitutional unless they were too low to allow effective candidate communication.
In the Randall case, Chief Justice John Roberts joined in an opinion written by Justice Breyer that went beyond just affirming the Buckley decision. The opinion said that that “stare decisis” applied to Buckley and that Buckley should not be overturned without “special justification,” especially “where, as here, the principle at issue has become settled through iteration and reiteration over a long period.”
According to the Breyer opinion joined by Chief Justice Roberts:
The Court has pointed out that stare decisis “‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’” United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996) (quoting Payne v. Tennessee, 501 U. S. 808, 827 (1991)). Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal expectations. For this reason, the rule of law demands that adhering to our prior case law be the norm. Departure from precedent is exceptional, and requires “special justification.” Arizona v. Rumsey, 467 U. S. 203, 212 (1984). This is especially true where, as here, the principle has become settled through iteration and reiteration over a long period of time.
We can find here no such special justification that would require us to overrule Buckley. Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles. Cf. Dickerson v. United States, 530 U. S. 428, 443 (2000).
Since Randall, no such “special justification” for overturning Buckley has arisen.
Certainly the Citizens United decision does not provide “special justification” for overturning the Buckley decision, as it is based on the Buckley approach to contributions and expenditures. The Court in Citizens United favorably cited the Buckley distinction between limits on contributions and limits on expenditures in striking down the prohibition on corporations making independent expenditures in federal elections. (See below.)
Citizens United v. Federal Election Commission (2010)
In 2010, the Supreme Court in Citizen United v. Federal Election Commission found unconstitutional the federal prohibition on corporations making independent expenditures in federal elections.
The Supreme Court in its opinion cited Buckley favorably in reaffirming the distinction made in Buckley between limits on contributions, which are constitutional, and limits on expenditures, which are not. The majority opinion written by Justice Kennedy stated:
With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo,” id., at 26, and that “the scope of such pernicious practices can never be reliably ascertained,” id., at 27. The practices Buckley noted would be covered by bribery laws, see, e.g., 18 U. S. C. §201, if a quid pro quo arrangement were proved. See Buckley, supra, at 27, and n. 28 (citing Buckley v. Valeo, 519 F. 2d 821, 839–840, and nn. 36–38 (CADC 1975) (en banc) (per curiam)). The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. MCFL, 479 U. S., at 260; NCPAC, 470 U. S., at 500; Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 210 (1982) (NRWC). The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here.
Thus, the Supreme Court in the Citizens United decision reaffirms the longstanding contributions/expenditures distinction established in Buckley. The Court in Citizens United repeats the Buckley position that contribution limits are preventative measures that are constitutional “in order to ensure against the reality or appearance of corruption.”
Republican National Committee v. Federal Election Commission (2010)
In 2010, the Supreme Court in Republican National Committee v. Federal Election Commission summarily reaffirmed the constitutionality of the prohibition on “soft money,” or large contributions to the parties. The soft money prohibition was originally upheld as constitutional by the Supreme Court in 2003 in the McConnell case. The RNC lawsuit was filed in an attempt to overturn McConnell.
Chief Justice Roberts voted in the majority in the 6 to 3 decision in the RNC case. Thus, Chief Justice Roberts is on record in the RNC case in support of the constitutionality of prohibiting large contributions to parties. The same issue is at stake in the McCutcheon case.
Conclusion
For almost four decades, the Supreme Court in numerous cases has repeatedly held that contributions to candidates and parties provide opportunities for corruption and the appearance of corruption, and therefore limits on these contributions are constitutional.
There are no issues raised in the McCutcheon case that provide legal justification for overturning nearly four decades of Supreme Court precedents.
There is also no “special justification” provided by the Citizens United decision for reversing the Supreme Court position in Buckley that “has become settled through iteration and reiteration over a long period,” in the words of the opinion by Justice Breyer joined by Chief Justice Roberts in Randall. Citizens United restates the Buckley distinction between contribution limits, which are constitutional, and expenditure limits, which are not.
There are no constitutional or legal grounds in the McCutcheon case that would justify reversing the Supreme Court’s longstanding position that contribution limits are constitutional, or that would justify striking down the overall contribution limits at issue in the case.
The Democracy 21 legal team filed a Supreme Court amicus brief on behalf of Representatives Chris Van Hollen and David Price in the McCutcheon case to defend the constitutionality of the overall contribution limits. The legal team was led by former U.S. Solicitor General Seth Waxman and his law firm, WilmerHale, and Scott Nelson, an attorney with the Public Citizen Litigation Group. Democracy 21 President Fred Wertheimer and Democracy 21 counsel Don Simon also served as attorneys on the amicus brief.
