When the Supreme Court decided McCutcheon v. FEC 12 months ago, First Amendment advocates celebrated a victory while supporters of greater campaign finance regulation predicted doom, gloom and the death of democracy itself.
One year and one election later, we have some evidence to evaluate these perspectives. So far, it’s good news for the First Amendment.
McCutcheon’s major effect has not been to increase the influence of the wealthy, but to narrow the grounds on which government may interfere with political speech, and to encourage the relaxation of other unnecessary campaign finance regulations.
At issue in McCutcheon was the federal biennial aggregate contribution limit — an arbitrary cap on the overall amount individuals could contribute to all candidates and all political committees combined. This limit existed separately from the base contribution limits that control how much individuals may contribute to any one candidate or PAC, which were not challenged in the case.
In other words, campaign finance laws used to limit both how much you could give to a candidate and how many candidates you could support with the maximum donation. After McCutcheon, the only remaining limit is the one on how much you can give to any one entity.
To McCutcheon opponents, challenging the aggregate limit was akin to saying: “You know who doesn’t have enough influence in politics? Rich people!” Supporters countered that it was about First Amendment principles: The Supreme Court has long recognized that government can only limit campaign contributions if doing so is necessary to prevent corruption or the appearance of corruption, and if the base limits serve that purpose, what does the aggregate limit do besides restrict speech?
Furthermore, supporters of free speech argued that the aggregate limit likely hurt new candidates and challengers as an unintended consequence. Money follows power, meaning donors are more likely to contribute to incumbents and committee chairs before they consider long-shot candidates and outsiders, who are thus more likely to be left high and dry.
The aggregate limit was not keeping money out of politics or preventing corruption, but it was making it harder for challengers to fundraise.
The Court ultimately struck down the aggregate limit when the government failed to show that it prevented corruption. As Chief Justice John Roberts wrote for the majority, the government and dissenting justices were put in the awkward position of arguing that it was “perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give the same amount to a 10th.”
Detractors of the McCutcheon ruling offered hyperbolic predictions about how it would affect campaign spending and the 2014 midterm election. Public Citizen, to name one, warned “the decision means that one individual can write a single check for $5.9 million to be spent by candidates, political parties and political committees,” and added “It is sure to go down as one of the worst decisions in the history of American jurisprudence.”
Scare tactics aside, these scenarios simply did not play out in reality. After adjusting for inflation, overall election spending actually decreased from the previous midterm’s total in 2010. To be sure, there were some donors who gave a lot of money to candidates, but no one even came close to the sort of outlandish multi-million dollar checks that critics said would be commonplace. In the grand scheme of things, 2014 was just another election.
Where McCutcheon’s impact appears to truly lie is in affecting how Congress and states think about laws restricting speech. The Court made clear that government may not merely assert that a law is necessary to prevent corruption, it must prove it.
In response, at least 10 states have either officially repealed or ceased enforcement of their own aggregate limit and similar laws. (Only 19 states had such laws.) For its part, the federal government significantly increased the amount that individuals may contribute to political parties. In fact, since 2010, 15 states have raised or eliminated many of their limits, recognizing that they do more harm than good. Yes, politicians may finally be learning the age-old lesson that the best response to speech is not more repressive restrictions, but rather more speech.
The actual effects of McCutcheon look very different from the doomsday scenarios its critics put forth. The case was a game-changer for the laws that govern the political process, but not exactly a game-changer for the political process itself.
The High Court took a firm stand against speech regulations that lack a clear anti-corruption purpose. That’s a win for the First Amendment, whether you care about the aggregate limit or not.
Luke Wachob is the McWethy Fellow at the Center for Competitive Politics, the nation’s largest organization dedicate solely to protecting First Amendment political rights. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
