The Next Citizens United?

It’s been three years since the Supreme Court’s Citizens United decision and the American political system is, for better or worse, still standing. To be sure, the landmark ruling paved the way for millions of corporate dollars to be spent during the 2012 election cycle on independent expenditure campaigns. But the ultimate impact of Citizens United— whether that money can truly sway an election—remains unclear.

As we head into the next cycle, numerous other campaign finance laws remain in place and, in many instances, ripe for legal challenges. And nowhere is this more important than at the U.S. Supreme Court.

Since Citizens United, justices have taken a much more nuanced view of campaign finance laws than the apocalyptic headlines following its landmark 2010 decision would suggest. The court upheld a ban on unlimited contributions to national political parties in Republican National Committee v. Federal Election Commission. It also left in place Connecticut’s public financing law for state elections.  Most recently, the court declined to weigh in on a case challenging corporate contributions directly to candidates, Danielczyk v. United States, which many observers viewed as the next logical step in campaign finance deregulation after Citizens United.

Those developments show a Supreme Court still grappling with the many aspects of campaign finance laws, says Justin Levitt, an election law expert at Loyola Law School in Los Angeles.

“The conventional wisdom is that Citizens United meant the end of all campaign finance regulation,” he says. “But it’s really only an over-emphatic answer to one question. And it doesn’t tell you how the court views different questions.”

Legal observers note the court seems to remain concerned about the appearance of corruption, the quid pro quo involving a symbolic suitcase full of cash passed from a single donor to an elected official. That was a key holding in the landmark 1976 Buckley v. Valeo ruling and the court has historically granted states and Congress deference in setting campaign contribution limits for that reason. But some experts see problems in Buckley’s reasoning.

Michael McConnell, a professor at Stanford Law School and former federal circuit judge, says Buckley has a “central incoherency” that was made apparent in the last election, when Super PACs and other independent groups blanketed the airwaves. The ruling, he says, draws a distinction between contributions, which could be limited, and independent expenditures, which, as Citizens United showed, should not.

“The court asserts, with no evidence and contrary to the views of almost everyone familiar with the issue, that the former have the potential for corruption and the latter do not.”

Since Buckley, federal limits on contributions directly to candidates have been unimpeachable at the court—the justices have never struck one down. That may change next fall, however, when the court will consider a case from an Alabama businessman and the Republican National Committee.

Aggregate limits in question

Shaun McCutcheon is a frequent contributor to Republican candidates, PACs and the Republican National Committee. In the process of cutting checks last cycle, he ran into the FEC’s aggregate limits. So while he didn’t want to exceed individual limits of $2,500 to a candidate per election, $30,800 to a national party per year and $10,000 to other political committees per year, when he added up all his donations, he exceeded the aggregate limit of $46,200 to candidates and $70,800 to all other committees. McCutcheon wanted his contributions to candidates to top the individual limit by about $8,000 and the limit to parties and PACs by just over $26,000.

At first blush, the challenge seems to make logical sense. McCutcheon isn’t giving any one candidate a suitcase full of cash. He’s abiding by the federal contribution limits. But the case has caught the eye of election law experts because it could open the door to contribution limits more generally.

“The issue that is lurking is whether or not this becomes a springboard to further challenges to contribution limits,” says Richard Briffault of Columbia Law School. McCutcheon’s lawyer, Indiana’s James Bopp, hopes the justices take a dive of that springboard.

“It provides the opportunity for the court, if it wants to, to opine and even re-examine how they treat contribution limits,” says Bopp, who also worked on the Citizens United case. “We will certainly be providing a basis for the court to do that if they want to.”