April 2, 2014 •
Today, in McCutcheon v. Federal Election Commission (docket 12-536), the United States Supreme Court ruled aggregate limits on federal campaign contributions are an unconstitutional violation of the First Amendment’s guarantee of political expression and association.
Federal law imposes two types of limits on individual political contributions.
Base limits restrict the amount an individual may contribute to:
- A candidate committee;
- A national party committee;
- A state, local, and district party committee; and
- A political action committee.
Biennial limits restrict the aggregate amount an individual may contribute biennially to:
- Candidate committees; and
- All other committees.
Shaun McCutcheon is an Alabama businessman who regularly makes political contributions to Republican candidates and the Republican National Committee. McCutcheon wanted to contribute $26,200 more to candidates and committees than the aggregate ceiling would allow. The Republican National Committee was also a plaintiff in the suit.
McCutcheon did not challenge the base limits on contributions to individual candidates and entities, but, wanting to give to more candidates and political entities than allowed by law, he challenged the aggregate limits.
In a 5-4 decision, with the majority joined by Justice Thomas in a separate concurring opinion, the Court found aggregate limits do not further the permissible government interest in preventing quid pro quo corruption or the appearance of such corruption.
The majority opinion, written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Alito, found the aggregate contribution limits do not further the only governmental interest accepted as legitimate in Buckley v Valeo. The 1976 decision by the U.S. Supreme Court found aggregate limits to be a permissible government regulation to curtail corruption or the appearance of corruption.
In McCutcheon, the Court stated, “Congress may not regulate contributions simply to reduce the amount of money in politics.”
The Court equated political contributions with “political campaign speech,” writing, “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”
Effect on other jurisdictions: (updated June 16, 2014)
The McCutcheon decision’s effects extend beyond the federal campaign finance laws.
At its May 14, 2014 meeting, the Connecticut State Elections Enforcement Commission announced it would no longer enforce the state’s aggregate contribution limit absent further direction from the General Assembly or a court of competent jurisdiction. The commission stressed, however, the base contribution limits would remain in full force and effect.
In a policy statement dated June 4, 2014, the Maine Commission on Government Ethics and Practices stated it would no longer enforce the yearly $25,000 aggregate contribution limit applicable to individuals and entities contained in Maine Revised Statutes section 1015(3), barring guidance from the legislature or a court. The policy statement noted the commission’s intention to study the issues and perhaps propose legislation during the next legislative session.
The Maryland State Board of Elections issued a guidance memo stating the board would no longer enforce a $10,000 aggregate limit on donors’ contributions to state candidates during a four-year election cycle, while stressing the $4,000 limit on personal contributions to any one candidate was still in place.
The Massachusetts Office of Campaign and Political Finance (OCPF) announced it will no longer enforce the state’s $12,500 aggregate limit on the amount an individual may contribute to all candidates, but will continue to enforce the $5,000 aggregate limit on contributions by individuals to party committees.
A provision in Minnesota’s campaign finance law known as the “special sources limit” will no longer be enforced as applied to individual large donors. U.S. District Judge Donovan Frank issued a preliminary injunction barring enforcement of the law with respect to individual large donors in response to a challenge by the Institute for Justice on First Amendment grounds. Under section 10A.27(11) of the Minnesota Statutes, the special sources limit prohibits a campaign from raising more than 20 percent of its total contributions from lobbyists, political committees, and large donors contributing more than one half of the individual contribution limit. Donovan issued the injunction in light of the precedent set by McCutcheon. The defendants have the opportunity to appeal to the 8th U.S. Circuit Court of Appeals. If they choose not to appeal, the case will proceed to a final ruling at the district court level.
The U.S. District Court for the Southern District of New York struck down a campaign finance law limiting contributions to super PACs. Sections 14-114(8) and 14-126 of the New York Election Law imposed an annual aggregate contribution limit of $150,000 per contributor. Plaintiff New York Progress and Protection PAC challenged the aggregate contribution limits on First Amendment grounds. Citing the precedent established in Citizens United and McCutcheon, the judge enjoined New York’s aggregate contribution limit as an unconstitutional ban on free speech. In its May 2014 meeting, the State Board of Elections determined the $150,000 yearly aggregate limit on political contributions from individuals can no longer be enforced in light of recent federal court decisions. New York campaign finance law imposes a similar aggregate limit of $5,000 on a corporation’s yearly contributions. The board made no ruling with regard to the corporate limit; however that limit is being challenged in federal court.
On April 3, 2014, the Puerto Rico Office of the Electoral Comptroller issued an informational newsletter in light of the U.S. Supreme Court ruling. While the Court referenced similar aggregate limits in other states and jurisdictions, it did not go so far as to declare them unconstitutional. Therefore, the office is not taking any immediate action with regard to the Puerto Rico aggregate campaign finance limits established in 2011. It will request an opinion from the Puerto Rico Secretary of Justice to determine how the Court’s decision relates to Puerto Rico law. The office will issue new informational bulletins as further developments arise.
On April 16, 2014, the Rhode Island Board of Elections voted to support the creation of legislation eliminating aggregate political contribution limits. The vote was in reaction to the McCutcheon decision. State law currently prohibits an individual from making contributions of more than $10,000 in the aggregate to more than one candidate, political action committee (PAC), or political party committee or to a combination of candidates, PACs, and political party committees within a calendar year.
In Vermont, Senate Bill 82 added an aggregate contribution limit of $40,000 per election cycle, which was to take effect January 1, 2015. However, the implementation of the aggregate contribution limit was contingent on the Supreme Court ruling in favor of aggregate limits in McCutcheon. Because the Supreme Court in fact ruled against aggregate limits, Vermont’s aggregate limit will not go into effect.
Wisconsin’s aggregate limits had already been challenged in Young v. Government Accountability Board. The parties in that case agreed to put the case on hold until the McCutcheon decision was issued. Following the ruling, the Government Accountability Board reached a settlement in which it agreed the aggregate contribution limits for individuals and PACs contributing to state candidates were no longer enforceable.
The Wyoming Joint Corporations, Appropriations, and Political Subdivisions Interim Committee ordered a draft bill to repeal the state’s aggregate contribution limits, which conflict with the U.S. Supreme Court’s ruling in McCutcheon.
In light of the ruling in McCutcheon, the Los Angeles Ethics Commission announced it would no longer enforce the aggregate limits on contributions to city and school board candidates. Limits on contributions to individual candidates remain in place.
The San Francisco Ethics Commission adopted a resolution stating it will not enforce the aggregate limit on contributions to city candidates in light of the McCutcheon ruling. The Campaign and Governmental Conduct Code imposes an aggregate limit of $500 multiplied by the number of city elective offices to be voted on in the election. The city’s $500 limit on contributions from an individual to a single city candidate remains in full force.
Quid pro quo corruption narrowly defined:
The Court maintained a narrow definition of quid pro quo corruption, preventing the government from limiting the First Amendment right to make contributions to as many candidates as an individual would like, within the base limits of contributions.
In the decision, the Court marked a solid delineation between corruption and appreciation: “[T]here is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful. . . . To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the political process.”
The Court found the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties does not give rise to such quid pro quo corruption.
The Court wrote, “The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
Arguing against the dissent’s argument that corruption could still occur even without the circumvention of the base contribution limits, the majority found such an argument would broaden the definition of quid pro quo corruption. The Court stated the dissent’s interpretation “dangerously broadens the . . . definition of quid pro quo corruption . . . and targets as corruption the general, broad-based support of a political party.”
Circumvention of base limits:
The Court found the argument that aggregate contributions could circumvent base contribution limits unconvincing.
The majority said the basis for allowing the law on aggregate limits to stand falls on “speculative” scenarios of corruption, which the Court found “highly implausible” and “hard to believe.” The Court said “experience and common sense” foreclose on many of the scenarios of schemes to funnel money, including one scenario the District Court found had merit. The Court found, “Based on what we can discern from experience, the indiscriminate ban on all contributions above the aggregate limits is disproportionate to the Government’s interest in preventing circumvention.”
The Court stressed that once an individual reaches the aggregate limit, the law denies “the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences.”
The Court also argued disclosure of contributions “minimizes the potential for abuse of the campaign finance system.”
The majority maintained lifting the aggregate limits encourages money away from entities not subject to disclosure: “Individuals can, for example, contribute unlimited amounts to 501(c) organizations, which are not required to publicly disclose their donors.”
Citing Citizens United, Justice Roberts wrote, “Disclosure requirements burden speech, but—unlike the aggregate limits—they do not impose a ceiling on speech.” In Citizens United, the Court held 8-1 that laws requiring the disclosure of political contribution were constitutional.
Legislative alternatives suggested by the Court:
The majority opinion suggested Congress could create other legislation to curtail circumvention of the base limits, such as enacting legislation targeting restrictions on transfers among candidates and political committees.
Additionally they wrote, “Congress might also consider a modified version of the aggregate limits, such as one that prohibits donors who have contributed the current maximum sums from further contributing to political committees that have indicated they will support candidates to whom the donor has already contributed.”
Overturning Buckley v Valeo’s holding on aggregate limits:
In overturning the 1976 U.S. Supreme Court Buckley v Valeo’s ruling on aggregate limits, the Court found the 38-year-old decision did not thoroughly address aggregate limits in its analysis. The Court also found subsequent laws enacted have “considerably strengthened” statutory safeguards against circumventing base limits through the transfer of contributions between parties and political committees. Additionally the Court argues Buckley did not address the “overbreadth challenge” with respect to the aggregate limits.
The Court rejected an alternative provided in the Supreme Court’s prior Buckley decision finding a person could personally volunteer for a candidate. The majority found “personal volunteering is not a realistic alternative for those who wish to support a wide variety of candidates or causes.”
The Court also heavily relied on campaign finance cases decided in the last few years, such as Citizens United v FEC and Arizona Free Enterprise Club’s Freedom Club PAC v Bennett.
Justice Thomas, in his separate opinion concurring with the majority ruling, writes Buckley “denigrates core First Amendment speech and should be overruled.”
June 5, 2020 •
Due to the COVID-19 pandemic, the General Assembly has canceled legislative sessions for the week of June 8 to June 12. In addition, the Joint Legislative COVID-19 Emergency Spending Task Force is expected to meet on Tuesday, June 9. The […]
Due to the COVID-19 pandemic, the General Assembly has canceled legislative sessions for the week of June 8 to June 12.
In addition, the Joint Legislative COVID-19 Emergency Spending Task Force is expected to meet on Tuesday, June 9.
The meeting will be televised and live streamed online here.
Both chambers of the General Assembly are scheduled to meet on Tuesday, June 16.
This does not affect lobbyist reporting.
June 5, 2020 •
Louisiana lawmakers called themselves into a 30-day special session that began on June 2, immediately following the adjournment of the regular session. The special session agenda focuses on piecing together a more than $30 billion operating budget for the financial […]
Louisiana lawmakers called themselves into a 30-day special session that began on June 2, immediately following the adjournment of the regular session.
The special session agenda focuses on piecing together a more than $30 billion operating budget for the financial year that begins on July 1.
The session will also center on tax credit considerations, exemptions, and suspensions for businesses that were forced to reduce operations since March in response to the COVID-19 pandemic.
June 4, 2020 •
Lt. Gov. Geoff Duncan and Speaker of the House David Ralston announced the Georgia General Assembly will resume its 2020 legislative session on June 15. The General Assembly’s session has been on pause since March 13 due to COVID-19 concerns. […]
Lt. Gov. Geoff Duncan and Speaker of the House David Ralston announced the Georgia General Assembly will resume its 2020 legislative session on June 15.
The General Assembly’s session has been on pause since March 13 due to COVID-19 concerns.
Upon reconvening, a key issue will be the state budget.
June 4, 2020 •
Gov. Brad Little appointed Aaron von Ehlinger to fill the Idaho House District 6 seat until November’s general election. The appointment was made one day after von Ehlinger challenged incumbent Rep. Thyra Stevenson, and won the Republican primary for the […]
Gov. Brad Little appointed Aaron von Ehlinger to fill the Idaho House District 6 seat until November’s general election.
The appointment was made one day after von Ehlinger challenged incumbent Rep. Thyra Stevenson, and won the Republican primary for the seat.
However, Stevenson passed away on May 11 following a heart attack.
She remained on the Republican primary ballot because it was too late to change forms.
The 6th Legislative District Republican Central Committee nominated von Ehlinger and two others as potential picks following the passing of Stevenson.
Von Ehlinger will now be the incumbent in the November general election, where he is running unopposed.
June 4, 2020 •
Campaign Finance California: “DAs Demand Ban on Endorsements and Donations to Prosecutors by Police” by Maria Dinzeo for Courthouse News Service Kansas: “Kansas Agencies Say Senate Candidate’s Raffle of Signed Chiefs Jersey Violates Law” by Bryan Lowry for McClatchy DC […]
California: “DAs Demand Ban on Endorsements and Donations to Prosecutors by Police” by Maria Dinzeo for Courthouse News Service
Kansas: “Kansas Agencies Say Senate Candidate’s Raffle of Signed Chiefs Jersey Violates Law” by Bryan Lowry for McClatchy DC
Tennessee: “Tennessee House Approves Measure Reducing Campaign Finance Disclosures in Election Years” by Joel Ebert for The Tennessean
National: “Steve King Ousted on Historic Primary Night” by Allie Mutnick, James Arkin, and Zach Montellaro for Politico
North Carolina: “Republicans Will Move Trump Convention Speech Out of Charlotte” by Annie Karni for New York Times
Pennsylvania: “A Congressman Caught in the 1970s Abscam Sting Is Now at the Heart of a Philly Election Fraud Probe, Sources Say” by Jeremy Roebuck, Chris Brennan, and Andrew Seidman for Philadelphia Inquirer
Wisconsin: “Wisconsin Supreme Court Agrees to Hear Voter Purge Case” by Scott Bauer for AP News
National: “How Trump’s Idea for a Photo Op Led to Havoc in a Park” by Peter Baker, Maggie Haberman, Katie Rogers, Zona Kanno-Youngs, and Katie Benner (New York Times) for MSN
National: “This Treasury Official Is Running the Bailout. It’s Been Great for His Family.” by Justin Elliott, Lydia DePillis, and Robert Faturechi for ProPublica
New Mexico: “Mixed Ruling on State’s Ethics Law” by Dan McKay for Albuquerque Journal
Rhode Island: “Ethics Commission Rejects Staff Advice: Opens door for Sen. Lynch Prata to potentially get Supreme Court seat” by Katherine Gregg for Providence Journal
June 3, 2020 •
After a prolonged standoff with the state’s Democratic governor, President Donald Trump says Republicans will seek another state instead of North Carolina to hold its August convention. Gov. Roy Cooper rejected a proposal for a full convention and insisted on […]
After a prolonged standoff with the state’s Democratic governor, President Donald Trump says Republicans will seek another state instead of North Carolina to hold its August convention.
Gov. Roy Cooper rejected a proposal for a full convention and insisted on scaling back the event due to uncertainty as to what the status of the COVID-19 pandemic will be in August.
Several other locations are expected to or have already expressed interest in hosting the event, but the GOP is still weighing its options for the event.