04.02.2014Today the Supreme Court of the United States issued its decision in McCutcheon v. FEC. The decision, which was 5-4 and authored by Chief Justice Roberts, struck down the aggregate limits under the Federal Election Campaign Act. Specifically, the Court found that 2 U.S.C. section 441a(a)(3)(A), which limits individual contributions to federal candidates and party committees over the course of a two-year election cycle (i.e. the biennial limit) was unconstitutional because “aggregate limits do little, if anything, to address [the permissible objective of combatting corruption], while seriously restricting participation in the democratic process.” Justices Scalia, Kennedy and Alito joined in the majority opinion. Justice Breyer authored the dissent. Justice Thomas authored a concurrence. The Court found that while the Court in Buckley “in three sentences” provides “some guidance”, because statutory safeguards against circumvention have been “considerably strengthened since Buckley was decided. . .the indiscriminate aggregate limits under BCRA appear particularly heavy-handed.” Particularly the Court noted: 1) the 1976 FECA amendments that capped limits on contributions to political committees; 2) 1976 amendment that added an antiproliferation rule prohibiting donors from creating or controlling multiple affiliated political committees; 3) FEC regulations on the earmarking provisions of the FECA. The Court also noted distinct legal arguments that Buckley did not consider, including that the Court never addressed an overbreadth challenge in the specific context of aggregate limits. In addressing the government interest in the case the Court again emphasized that “while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption – ‘quid pro quo” corruption.” The Court noted Citizens United, and seems to dig in its heels: “As an initial matter, there is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly.” The Court notably offers Congress suggestions: 1) targeted restriction on transfers among candidates and political committees; 2) strengthening FEC regulations on defining how many candidates a PAC must support in order to ensure that ‘a substantial portion’ of a donors contribution is not rerouted to certain candidate; 3) modified version of 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 candidate to whom the donor has already contributed. Indeed, like in Citizens United, the Court emphasized the role of disclosure because “disclosure of contribution minimizes the potential for abuse of the campaign finance system.” Currently, eight states impose comparable aggregate contribution limits on a single contributor’s contributions to multiple recipients during a specified time period. All of these limits are now vulnerable to challenge under the Court’s decision, though with the Court’s suggestions for reform, there is much room for debate. As we previously discussed here and here the Court's decision may have an impact in New Jersey and certainly will in New York.