Early next month, the Supreme Court will hear arguments in a case that will be a test as much of the five conservative justices as of the law they will review. Ever the optimist that principled reasoning will prevail, I’m betting that the conservatives will pass the test (hoping for once to be proven right!). The issue in McCutcheon v. FEC is the limitation on aggregate contributions to federal campaigns. To simplify it radically: under federal law, individuals can give up to $2,600 to any candidate in any election cycle. But the total amount they can give to federal candidates in aggregate is capped at $123,200 per year. So, for example, while I can give $1,000 to any candidate I want, I can’t give that much to more than 123 candidates in one year (poor me!). Critics of the law say it “abridges” their “freedom of speech.” They should be allowed, these critics argue, to give as much as they want in aggregate, so long as the contribution for any candidate is limited to $2,600. Since 1976, the Supreme Court has been pretty clear about the basic question that must be answered in a case like this. The First Amendment limits Congress’s power to regulate political speech—severely, and rightly, in my view. Only if Congress can show a “compelling” interest can it restrict the freedom of individuals to contribute to political campaigns. Even then, the restriction must be “narrowly tailored” to the interest the government seeks to advance. “Good enough for government work” just doesn’t cut it when the issue is political speech.
The only viable “compelling interest” that the court has recognized in campaign-finance cases is “corruption.” Congress can limit individual contributions to $2,600 to avoid corruption, or the appearance of corruption. And by “corruption,” the court has meant “quid pro quo” corruption. If limits were much higher, Americans could rightly fear that contributions were being given in exchange for some government benefit. If anything is, that is “corruption.”
But as the petitioners in McCutcheon will argue, if the contributions of an individual to any particular candidate aren’t big enough to raise the concern that they are given in exchange for a government benefit—if each on its own, in other words, is not “corrupt”—how does aggregating those contributions somehow convert them into something that is corrupt?
For example, no one would think that a $500 contribution to a congressional candidate is evidence of corruption. But if you gave $500 to every Democratic (or Republican) candidate, you would exceed the federal limits. How does aggregating non-corrupt contributions render them corrupt?