The McCutcheon Case: Chief Justice Roberts and His Past Record on Contribution Limits

By Fred Wertheimer– President, Democracy 21

On October 8, the Supreme Court will hear oral argument in McCutcheon v. Federal Election Commission.

The case brought by Shaun McCutcheon and the Republican National Committee  challenges the constitutionality of the overall contribution limits on the total amount an individual donor can give to all party committees and PACs, and to all federal candidates, in a two-year election cycle.

The Supreme Court in Buckley v Valeo in 1976 upheld the constitutionality of contribution limits including overall contribution limits.

Chief Justice Roberts is likely to be a key, if not deciding, vote in the case and therefore it makes sense to examine his record on contribution limits since he joined the Court in 2005.

The provisions being challenged in the McCutcheon case limit contributions by an individual to all political party committees and PACs to a total of $74,600, and contributions by an individual to all federal candidates to a total of $48,600, in a two-year cycle.

If the Supreme Court were to strike these overall contribution limits, individual donors would be able to give contributions of $1 million, $2 million, $3 million and more, to support candidates and parties directly. Federal officeholders and candidates also would be allowed to solicit these huge contributions, which is currently prohibited. (See Democracy 21 Fact Sheet released on September 24 for an explanation of how this would occur.)

For example, if the limits are struck down, an officeholder could solicit and a donor could give as much as $1,199,600 to a single party in an election cycle. Regardless of whether the contribution was given to a “joint fundraising committee” for the party, or in smaller amounts to multiple  committees of the party, the end result would be the same – a contribution of more than $1 million from a single donor to a political party.

All of this money, furthermore, could end up in one party committee and be spent to support the officeholder or candidate who solicited the $1 million contribution.  

The contributions that would become legal if the overall limits were removed are the same kind of contributions that resulted in the Watergate corruption scandals of the 1970s and the “soft money” corruption scandals of the 1990s. They are the same kind of contributions that Congress has limited, beginning in 1974, and that the Supreme Court, beginning in 1976, has repeatedly held can be limited in order to prevent corruption and the appearance of corruption.

The stakes for our democracy in the outcome of this case could not be higher.

Chief Justice Roberts and Contribution Limits

 In 2006, Chief Justice Roberts voted with the majority in Randall v. Sorrell to strike down the limits on expenditures by candidates imposed under a Vermont law. In so doing, he also voted to reaffirm the 1976 decision in Buckley v. Valeo.

The Court in Randall also ruled that the contribution limits in the Vermont statute were unconstitutional because they were too low to allow candidates to communicate with voters effectively. This ruling was also in accord with Buckley

The majority of the Court in Randall reaffirmed the Buckley holding that contribution limits were constitutional, except where the limits were too low to allow candidates to effectively communicate in their campaigns.  The controlling opinion by Justice Breyer, which Chief Justice Roberts joined fully, found that the Vermont contribution limits were the lowest in the country and held them unconstitutional within the framework of the Buckley decision.

By contrast, the contribution limits at issue in Buckley and in numerous decisions that followed were upheld by the Supreme Court on the grounds that large contributions create opportunities for corruption and the appearance of corruption and therefore can be subject to limits. 

Importantly, in Randall, Chief Justice Roberts joined Justice Breyer’s opinion stating  that “stare decisis” applied to Buckley, and that Buckley should not be overturned without “special justification,” especially “where, as here, the principle at issue has become settled through iteration and reiteration over a long period.”

According to the Breyer opinion joined by Chief Justice Roberts:

The Court has pointed out that stare decisis “‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’” United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996) (quoting Payne v. Tennessee, 501 U. S. 808, 827 (1991)).  Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal expectations. For this reason, the rule of law demands that adhering to our prior case law be the norm. Departure from precedent is exceptional, and requires “special justification.” Arizona v. Rumsey, 467 U. S. 203, 212 (1984). This is especially true where, as here, the principle has become settled through iteration and reiteration over a long period of time.

We can find here no such special justification that would require us to overrule Buckley. Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles. Cf. Dickerson v. United States, 530 U. S. 428, 443 (2000).

Since the Randall case, no such “special justification” for overturning Buckley has emerged. In particular, nothing in the decision in Citizens United v. Federal Election Commission suggests any need to disrupt settled expectation by overturning Buckley’s acceptance of contribution limits.

In Citizens United, decided in 2010, Chief Justice Roberts joined the majority opinion in striking down the ban on independent campaign expenditures by corporations. In doing so, the Court overruled the 1990 decision in Austin v. Michigan Chamber of Commerce which had upheld the constitutionality of such a ban. 

In a separate concurring opinion in Citizens United, Chief Justice Roberts explained his vote to overrule the Austin decision.

The Chief Justice first recognized the importance of “stare decisis”, as he did in the Randall case with regard to Buckley, but then went on to explain why he did not feel bound by the principles of “stare decisis” to uphold the Court’s ruling in Austin.

Chief Justice Roberts argued that, among other things, the Austin decision was an “aberration” that had departed from the Buckley precedent.  The Chief Justice stated:

Austin undermined the careful line that Buckley drew to distinguish limits on contributions to candidates from limits on independent expenditures on speech.

Thus, in finding a “special justification” for overturning Austin, the Chief Justice actually relied on the longstanding distinction set forth in Buckley between contribution limits, which were found to be constitutional, and expenditures limits, which were found to be unconstitutional.

The same Buckley contributions/expenditures distinction was relied on by Justice Kennedy in his majority opinion in Citizens United, which Chief Justice Roberts joined.

Specifically, in holding the ban on independent corporate expenditures unconstitutional, Justice Kennedy’s opinion in Citizens United reaffirmed the contributions/expenditures distinction established in Buckley. The Kennedy opinion also reiterated Buckley’s reasoning for holding that contribution limits are constitutional:

With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo,” id., at 26, and that “the scope of such pernicious practices can never be reliably ascertained,” id., at 27.

The Kennedy opinion noted Buckley’s position that contribution limits are “preventative” and that they are constitutional “in order to ensure against the reality or appearance of corruption.”

Thus, in Randall, the Chief Justice rejected a direct challenge to Buckley and invoked the principle of “stare decisis” to uphold the Buckley framework that drew a line between contribution limits and expenditure limits.  

And in Citizens United, the Chief Justice said he was willing to depart from “stare decisis” to overturn the Austin decision precisely because Austin itself had departed from the Buckley framework regarding the constitutionality of limits on contributions versus limits on  expenditures. Once again, the Chief Justice relied on the Buckley distinction, and the majority opinion by Justice Kennedy likewise took pains to leave the distinction untouched.

The Chief Justice’s positions in Randall and Citizens United place him firmly on record in support of the application of “stare decisis” to Buckley’s holding that contribution limits are constitutional and expenditure limits are unconstitutional.

Under these circumstances, the Chief Justice would have to reverse his past positions in Randall in 2006 and Citizens United in 2010 in order to vote to strike down as unconstitutional the overall contribution limits at issue in McCutcheon.

In order to vote to strike down the limits, Chief Justice Roberts would also have to reverse the position he took in 2010 in Republican National Committee v. Federal Election Commission..

In the RNC case, the Supreme Court summarily reaffirmed the constitutionality of the prohibition on “soft money,” or large contributions to the parties, first upheld in McConnell v Federal Election Commission in 2003 and challenged again in the RNC case.

Chief Justice Roberts voted with the majority in the 6 to 3 decision in the RNC case and thus went on record in support of the constitutionality of prohibiting large contributions to parties.  This same issue is at stake in the McCutcheon case, because striking the overall contribution limits would again allow individuals to make $1 million contributions to a political party, as they did before the soft money ban was enacted and upheld in McConnell and RNC.

Conclusion

 Chief Justice Roberts does not have a legitimate basis for voting to strike down the overall contribution limits in the McCutcheon case.

The Chief Justice is on record for the proposition that “stare decisis” applies to the Buckley decision upholding contribution limits and that the Buckley decision should not be overturned without “special justification.”No such “special justification” exists.

If nevertheless the Chief Justice and a majority of the Court were to overturn Buckley and hold overall contribution limits unconstitutional, they would do enormous damage to our political system. 

A decision to strike down the overall contribution limits will return to our elections huge contributions that directly support candidates and parties and will recreate the system of legalized bribery that existed prior to the Watergate campaign finance scandals.

Equally damaging, a decision by the Supreme Court to strike down the overall contribution limits will seriously undermine the legitimacy of the Court in the eyes of the American people. 

Citizens already overwhelmingly reject the Citizens United decision and the unlimited corporate money the Supreme Court has unleashed in our elections.   If the Supreme Court were to now allow $1 million, $2 million and $3 million contributions to support candidates and parties directly, the Court would leave the nation unable to protect itself from the wholesale corruption of our federal officeholders and government decisions.

The Roberts Court would take on the role of enabler of the corruption of our democracy.

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