In Defense of McCutcheon v Federal Election Commission

On April 2, 2014, a sharply divided United States Supreme Court struck down the aggregate limits on campaign contributions in federal elections. The case of McCutcheon v. Federal Election Commission represented the most important election law decision since Citizens United v. Federal Election Commission in 2010. Prior to McCutcheon, the Federal Election Campaign Act (“FECA”), as amended by the Bipartisan Campaign Reform Act (“BCRA”), imposed an overall biennial limit of $123,200 on total donations by a single contributor to federal candidates, parties, and political action committees (“PACs”) that coordinate with federal candidates or parties. But in McCutcheon, a 5-4 majority held that the aggregate limits violated the First Amendment rights of freedom of expression and freedom of association. The McCutcheon decision triggered a storm of criticism and controversy. Justice Breyer warned in the dissent that “today's decision eviscerates our Nation's campaign finance laws.” The New York Times editorial board condemned the majority for mounting a “crusade to knock down all barriers to the distorting power of money on American elections.” A May 2014 poll found that 51% of Americans believe the McCutcheon ruling will increase political corruption. Nevertheless, despite the widespread condemnation of the decision, the majority got the ruling right. This article's thesis is that the aggregate limits did more harm than good. In defending the McCutcheon ruling, this article makes five main points. First, contrary to popular opinion and the claims made by the dissent, the McCutcheon decision does not gut the current campaign finance system. The majority's ruling only lifted FECA's limits on the aggregate amount of contributions by a single donor to federal candidates, parties, and political action committees that coordinate with federal candidates and parties (“traditional PACs”). McCutcheon thus leaves untouched the two cornerstones of federal election law--base limits on contributions and mandatory disclosure. Second, the McCutcheon ruling moderates the huge structural fundraising advantages that Super PACs and other outside groups have possessed in recent elections. Third, the Court's ruling represents a modest victory for advocates of transparency in the funding of federal election campaigns. By opening up more avenues for money to flow to parties and candidates subject to mandatory disclosure laws, the McCutcheon ruling enhances the public's knowledge of the funding sources of federal election campaigns. Fourth, the McCutcheon ruling recognizes the unpopular but undeniable reality that money facilitates political speech. Fifth, the Court's adoption of a narrow definition of corruption shows wise restraint. The essence of democracy is officeholder receptivity to constituent concerns, which makes efforts to circumscribe access and influence a dangerously intrusive, subjective, and open-ended task. Partisans often view the opposing party's campaign contributors as a malign and corrupting influence on democratic government, while viewing their own supporters as exercising a benign and constructive influence on the policymaking process. Thrusting the federal courts into ferociously partisan controversies over access and influence will not make the political system any less corrupt; instead, it will spread the contagion of partisan and ideological warfare to the judiciary. McCutcheon thus displays laudable restraint in embracing a narrow, clear, and objective definition of corruption.