Campaign Finances — But I want to Give More! The Struggle between the First Amendment and Corruption

The Struggle between the First Amendment and Corruption in Campaign Finances

Paola Armeni

“I am not a crook.” In the wake of violations in the Watergate Scandal, the Federal Election Commission (FEC) was created in 1974 to oversee and enforce campaign finance regulations and the Federal Election Campaign Act was amended to limit campaign contributions.  Two years after the Watergate scandal, the US Supreme Court in the case of Buckley v. Valeo heard its first challenge on the limit to campaign contributions.  In that ruling, the Court recognized the importance of the First Amendment carefully drawing a distinction between contributions and expenditures. Expenditures were a form of direct personal expression.  A limit on contributions, however, was necessary to prevent corruption or the appearance of corruption and as such the highest court upheld the limit.    Through the years, the laws related to campaign contributions have been reviewed and expanded.

In the 2010 landmark case of Citizens United v. FEC, the United States Supreme Court eliminated the ban on corporate spending in elections declaring the restrictions on independent expenditures by corporations in federal elections campaigns unconstitutional.  Corporations are an important part of the country and the state of the law prior to Citizens “muffled the voices that best represent the most significant segments of the economy.”  In Citizens United, it was Justice Kennedy’s opinion that “If we believe that fair elections require a free airing of all opinions, than restrictions on campaign finance are the most dangerous forms of censorship.”

Fast forward three years and the landscape of political contributions may once again change.  On October 8th the United States Supreme Court heard arguments in the case of McCutcheon v. FEC.  Depending on the Court’s decision, McCutcheon could alter the limit on the total amount an individual donor can spend on federal candidates.

McCutcheon, an Alabama businessman, donated thousands of dollars to 16 different candidates and various party committees during the last election cycle but thousands wasn’t enough. He would have given more but the current state of the election law prohibited him from doing so.  Under the current federal campaign finance law, political contributions by individuals are limited to $123,000 for the 2013-2014 cycle.  The $123,200 donation amount is then broken down into specific dollar limits for candidates ($48,600), national party committees and certain political committees ($74,600).   Additionally, contributions to a specific candidate for federal office, per election, per cycle can only be $2,600 (or $5,200 in a two year election comprising of primary and general election).

McCutcheon believes the law violates the First Amendment right to freedom of speech.  He has not challenged the $2,600 limit but rather wants the ability to give the maximum to as many candidates as he wants.  He cannot do that without violating the $48,600 limit.  As a result he filed a lawsuit along with the Republican National Committee to challenge contribution restrictions.  From the FEC’s perspective, tighter campaign finance restrictions are necessary to fight corruption.  This case has brought two very distinct sides to the table.  In fact, twenty amicus (friend of the Court) briefs were filed supporting both sides.  For those in favor, they believe since donors would still abide by the individual base limits on contributions it shouldn’t matter whether they contribute that amount to one or 535 candidates.  They say that the aggregate limit is not narrowly tailored to achieve the government’s stated goal of preventing corruption or the appearance of corruption.  Those across the aisle on this issue are concerned that if the court strikes down the aggregate limit it would open the floodgates for a surge of money and influence in federal elections.   During oral argument even the Justices seemed at odds.  Restrictions on campaign contributions, Justice Ruth Bader Ginsburg said “promote democratic participation.” “Then the little people will count some, and won’t have the supper-affluent as the speakers that will control the elections.” Justice Antonin Scalia sarcastically, in response stated, “I assume that a law that only prohibits speech off 2% percent of the country is ok?”

As we wait for the highest court of the land to make a decision, what is more important – the protection of the First Amendment or the protection from corruption?

Gordon & Silver, www.gordonsilver.com

  • Ken Gordon

    The last question is meant to frame the issue between free speech and corruption, but I believe that it frames it poorly. It isn’t so much between free speech and corruption, it is between an attenuated form of speech, money, and equality of political voice. The major downside of allowing wealthy interests to fund our political system isn’t quid pro quo corruption. It is the destruction of the “all men are created equal” founding principle. The wealthy have more political power than the average man. That is wrong.