The First Amendment Protects Both Political Donations and Campaign Spending

The First Amendment broadly protects political speech and the use of resources (printing presses, the internet, money) to facilitate that speech. Yet when someone wants to engage in the most obvious kind of political speech — supporting election campaigns — the government is allowed to restrict this important constitutional right. In a new case coming to the Supreme Court, Shaun McCutcheon, a wealthy political donor, and the Republican National Committee contend that the limits on political donations are unconstitutionally low and not supported by a sufficient governmental interest.

Currently, an individual may contribute up to $2,500 per election to federal candidates, up to $30,800 per year to a national party committee, and up to $5,000 per year to any non-party political committee. The Federal Election Campaign Act of 1971, as amended most recently by McCain-Feingold in 2002, also imposes an overall limit on the aggregate amount one may contribute in a two-year period. For 2011-2012, an individual could contribute up to $46,200 to all federal candidates combined, and $70,800 to political action committees and political party committees—a total of $117,000.

Of course, this isn’t the first time that the Supreme Court has dealt with contribution limits. In the seminal 1976 case of Buckley v. Valeo, the Court held that while contribution limits implicate fundamental First Amendment rights, such limits are justified if they’re closely tied to an important governmental interest, such as preventing quid pro quo corruption or the appearance thereof.

But the Court also decided that restrictions on campaign spending put a heavier burden on political expression, one which the government couldn’t justify. One of the plaintiffs’ arguments here is that the biennial contribution limits are simultaneously a limit on expenditures—a position which Cato elaborated in a new amicus brief.

We argue that Buckley’s distinction between contributions and expenditures, with limits on the former but not the latter being constitutional, is problematic. Not only does it allow infringements on the freedom of speech, but it has led to an unbalanced and unworkable campaign finance system.

Various justices over the years, some even in Buckley itself, have questioned the Court’s logic on this point. Justice Thomas in particular has assailed the distinction, pointing out that both contributions and expenditures implicate First Amendment values because they both support political debate. Moreover, candidates must spend an inordinate amount of time fundraising instead of legislating because they face an unlimited demand for campaign funds but a tapered supply. At the same time, money has been pushed away from politically accountable parties and candidates and towards unelected advocacy groups, leading to a warping of and decrease in political competition.

The special three-judge district court that first heard this case was legally bound to the framework the Supreme Court laid out in Buckley and restated that contribution limits are constitutional as such, dismissing the lawsuit. Still, Judge Janice Rogers Brown wrote that “the constitutional line between political speech and political contributions grows increasingly difficult to discern.”

In a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office. We urge the Supreme Court to strike down the biennial contribution limits and give those who contribute money to candidates and parties as much freedom as those who spend money independently to promote campaigns and causes.

The Supreme Court will hear argument in McCutcheon v. FEC this fall.