It’s an old cliché that appearances can be deceiving, but, in the upside-down world of campaign finance law, appearances are all that the government needs in order to criminalize peaceful political activity. That’s because nearly 40 years ago, in the U.S. Supreme Court’s first major campaign finance decision, the Court held that such laws are justified as a means of avoiding even the mere “appearance” of corruption. Since then, lower courts across the country have taken this principle and run with it, upholding limits and sometimes even outright bans on the financing of political speech based on only the flimsiest of evidence. That might be about to change. Shortly after the U.S. Supreme Court reconvenes this October, it will hear argument in McCutcheon v. FEC, a major challenge to federal campaign finance law. And although the issue in the case is narrow, its repercussions could be widespread.
The lead plaintiff in the case is Shaun McCutcheon, an Alabama resident who in 2012 wished to make contributions in the amount of $1,776 to a number of federal candidates and who also wanted to give $25,000 to each of three political committees established by the Republican Party. Individually, each of these contributions would be legal. Combined, however, they violate what is called the “biennial aggregate contribution limit.”
Merely describing the biennial aggregate contribution limit demonstrates what a complicated mess our campaign finance laws have become. Simplified, the law is an overall cap on what an individual may contribute to all candidates, PACs and political parties combined. This limit is on top of limits on what an individual may give to any particular candidate or group. So, for example, while Mr. McCutcheon may give up to $2,600 per election to any particular candidate, he may not give more than $48,600 to all candidates combined over any two-year period. Different individual limits apply to PACs, state party committees, and federal party committees, which are also capped with an aggregate limit.