Yesterday, the United States Supreme Court noted probable jurisdiction over McCutcheon et al v. Federal Election Commission, a case that has the potential to open the door to a fundamental re-examination of the constitutional issues surrounding contribution limits. The legal questions presented by the case itself are not the headline to this story. On its face, the case presents an appeal to a failed effort by a wealthy donor to convince a three judge panel in the United States District Court for the District of Columbia that federal “biennial contribution limits” – aggregate two-year contribution limits for individual donors – violate the First Amendment. That the lower court concluded, under the analysis prescribed by Buckley v. Valeo, 242 U.S. 1 (1976), that the limits are closely drawn to match an important state interest, is not noteworthy. That the united States Supreme Court appears poised to extend its reasoning of Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010) and recognize the highest free speech protections to individual campaign contributions is.
Since the Court’s seminal decision in Buckley, the Court has applied a lesser level of First Amendment scrutiny to contribution limits than it has to expenditures. See e.g., McConnell v. Federal Election Commission, 540 U.S. 93, 136 (2003). To survive challenge, contribution limits needed only be “closely drawn to match an important state interest” and not survive a “strict scrutiny” test of validity.
The lower court in McCutcheon noted that the Supreme Court’s opinion in Citizens United appears to put the Court on a path toward treating contributions as “core political speech”, and thus subject to the highest level of scrutiny, but had not ruled so explicitly. McCutcheon, p. 6. Because the lower court lacked the authority to “anticipate the Supreme Court’s agenda”, the lower court applied Buckley’s lower standard and upheld the law. Id.
Now, with the Supreme Court poised to take up McCutcheon, are personal contribution limits – and even corporate contributions to federal candidates – unconstitutional infringements on free speech? We’ll have to wait and see.