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Free Speech Rights Affirmed; Campaign Contribution Limits Removed: The 5-4 McCutcheon Decision and Its Implications

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In a narrow but strong affirmation of First Amendment political speech freedoms, the U.S. Supreme Court struck down the aggregate campaign contributions limits in McCutcheon v. Federal Election Commission. In doing so, the Court upheld the primary importance of keeping political speech as unrestricted as possible.

Writing for a plurality opinion (and joined by Justice Thomas, who concurred separately to indicate that he would protect political speech even further), Justice Roberts began by articulating the bedrock principle that there is “no right more basic in our democracy than the right to participate in electing our political leaders.” Further, political speech is to be encouraged, not limited: “The First Amendment is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us."

Consequently, any government restraint of political speech – no matter how well intentioned – must be evaluated carefully. In particular, the government must have not only a legitimate objective for limiting political speech, but also a compellingly “close fit” between such limitations and the means selected to achieve such objective.

The statute at issue limited individual and total contribution amounts to political campaigns. (These limitations are contained in the Federal Election Campaign Act of 1971, as amended by the Bipartisan Campaign Reform Act of 2002). The government argued that both the individual and aggregate financial limitations were critical to preventing “quid pro quo” corruption – that is, undue influence by people on politicians. The Court agreed that the individual limitation satisfied the constitutional test for a “close fit,” because it could reasonably be expected to reduce the risk of essentially “buying” political influence over a specific candidate. The Court disagreed, however, that the same rationale would equally apply to aggregate limitations.

Instead, the Court held that a “substantial mismatch” existed for aggregate limitations. While the court observed that individual contribution limits help keep a specific candidate from being unduly influenced (therefore making the limitation appropriate), the Court determined that an aggregate limitation prevents donors from supporting as many candidates as they may otherwise wish to do. Such limitation does not fit the statutory anti-corruption goal. Further, while it is theoretically possible for donors to circumvent the individual limitation rule, the court reasoned that such risk is only speculative (particularly in light of campaign reform laws passed in recent years).   

Justice Breyer, in his opinion for the four dissenters, disagreed, asserting that the risk of abuse through circumvention was too great. Further, he opined that the plurality’s definition of corruption was too narrow.

As Justice Roberts countered, the question of where to draw the line between contributions resulting in inappropriate quid pro quo corruption, rather than permissible general influence, may seem vague. But as the Court previously recognized in its 2007 Wisconsin Right to Life decision, a court must on err on the side of political speech, not suppressing it, under the First Amendment. Applying this high standard, the Court then concluded that “the indiscriminate ban on all contributions above the aggregate limits is disproportionate to the government’s interest in preventing circumvention.”   

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