Sometimes at the Supreme Court, it is not if you lose, but how. That principle will be on full display in McCutcheon v. Federal Election Commission, the campaign finance case the Supreme Court will hear next Tuesday, the second day of the new term. If the government loses big, it could mark the beginning of the end of any limits on campaign contributions given directly to candidates in federal, state, and local elections. Citizens United and the rise of super PACs are already flooding the election system with money. But so far we’ve managed to keep a little distance between the money and the candidates themselves. If hard-line conservatives get their way, that distance will evaporate, and soon you could write a multimillion-dollar check that would go right into a candidate’s bank account. The question is whether Chief Justice John Roberts will hold back the conservative majority back from the brink—though if he does, Justice Antonin Scalia will surely taunt him for it.
At issue in McCutcheon are “aggregate” campaign finance limits in federal elections. Federal law currently caps at $48,600 the total amount than an individual can give to all federal candidates for office during a two-year election cycle. It also limits to $74,600 the total amount an individual can give to political committees that make contributions to candidates and sets a total cap of $123,200 for contributions in the two-year cycle.
Since 1976, the Supreme Court has taken a divided approach to the constitutionality of campaign finance limits when opponents challenge them as violating First Amendment rights of free speech and association. For contribution limits, the court applies a relatively lax standard of review, upholding limits when they are reasonably related to a legitimate government interest. In the 1976 case of Buckley v. Valeo, the court upheld a $25,000 aggregate limit (as well as a ceiling of $1,000 per candidate, since raised to $2,600). The court held that limiting the amount of contributions imposed only a “marginal” restriction on speech (since the important thing was the act of contributing, not the amount). And the court said the government’s interest in preventing corruption and the appearance of corruption justified that marginal restriction.