It is assumed that if the Court in McCutcheon revises the standard of review for contributions, it will do so to overthrow Buckley and to bring the standards for contributions and expenditures into alignment. Certainly this is a possibility, and it is the outcome being urged by Senator McConnell and dreaded by prominent voices in the reform community. Of course, the Court has other choices. Depending how it goes about the task, the Court could improve on the Buckley jurisprudence without destroying altogether the contribution/expenditure distinction. The Court’s treatment of contributions and expenditures does not have to be same in order for the approach to contributions to be better—more rigorous in construction and more convincing in application—than it is today.
The standard is well known—a contribution restriction is a “marginal” infringement of speech and associational rights that will be found constitutional if it is closely drawn to meet a sufficiently important government interest. Buckley v. Valeo, 424 U.S. 1. 20, 25-6 (1976). The central question is when a limit would fail this test. And that answer to that is rarely, and only if the limit as applied is so “dramatic,” “severe” or “radical” that it virtually extinguishes meaningful speech or association. Buckley at 21; Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 397 (2000). The Court has said that a contribution limit raises constitutional concern if it virtually silences the speaker, “driv[ing] the sound of a candidate’s voice below the level of notice.” Nixon at 397. Congressional discretion in setting limits is exceedingly broad, enjoying broad protection from judicial second-guessing.
But then the Court has had to address specific cases where the limits have been set so low—in the hundreds of dollars, or even at zero—when it could be said, in fact, that the speaker had been silenced. In neither case—the contribution reduced to a few hundred dollars, or prohibited altogether—have the Court’s standards proven clear or persuasive.