Since 1976, the Supreme Court has never struck down a federal contribution limit. The Supreme Court's democracy test

On Oct. 8, 2013, the U.S. Supreme Court will hear oral argument in the case of McCutcheon v. Federal Election Commission, a challenge to the constitutionality of the federal overall limit on contributions by an individual to candidates and political parties.

The court will face a decision of great consequence to American democracy.


At stake are two huge questions: the nation’s ability to prevent the corruption of federal officeholders and government decisions caused by huge campaign contributions, and whether we return to the system of legalized bribery that played a major role in the Watergate scandals.

In the wake of Watergate, Congress in 1974 enacted comprehensive new campaign finance laws that included limits on individual contributions to candidates and an overall limit on the total amount an individual could give to all federal candidates and parties.

The Supreme Court in 1976 in Buckley v. Valeo explicitly upheld the constitutionality of the overall contribution limit, as well as the individual contribution limits.

Since then, the Supreme Court has never struck down a federal contribution limit. Instead, the court has relied repeatedly on Buckley to hold that large contributions create opportunities for corruption and therefore can be subject to limits consistent with the First Amendment.

In 2006, furthermore, Chief Justice John Roberts joined in an opinion that said the Buckley decision and rationale should stand. That opinion said 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.” In fact, there is no “special justification” for overturning Buckley and its longstanding distinction between campaign contributions, which can be constitutionally limited, and independent campaign expenditures, which cannot. Even in Citizens United, the 2010 decision that struck down the prohibition on independent expenditures by corporations in federal elections, the Court relied on this distinction. Nevertheless, Shaun McCutcheon, a conservative Alabama activist and the Republican National Committee, the plaintiffs in this case, have joined to try to reverse the Buckley decision upholding overall contribution limits.

The McCutcheon case comes almost three years after Citizens United. The negative impact of that decision is already clear: It opened the door for unlimited money from wealthy donors, corporations, and others to be spent by Super PACs and nonprofit corporations in federal elections – and new opportunities for influence.

As damaging as Citizens United has been to our political system, the Supreme Court would make a bad situation far worse if it strikes down the overall contribution limits in the McCutcheon case. To understand why, we need to look at the role of “joint fundraising committees” in modern-day fundraising.

The overall contribution limit for a single donor in the 2012 election cycle was $70,800 to all party committees and $46,200 to all federal candidates.

In the presidential election, Barack Obama and Mitt Romney each had joint fundraising committees that consisted of their campaign committees and several party committees.

Obama and Romney used those committees to solicit contributions to their parties of $70,800 per donor, the maximum amount an individual could give to their party committees under the overall contribution limits. The money raised by these joint fundraising committees was then spent to support the Obama and Romney campaigns.

All told, 1,257 individual donors gave the maximum amount in party contributions to these joint fundraising committees, according to the Center for Responsive Politics.

Now imagine that overall contribution limits are struck down. Presidential candidates in 2016 could solicit and each of these donors could contribute as much as $1.2 million to their joint fundraising committees.

This huge contribution, consisting of the contributions that could be given to all of the committees of a party, could then be spent to support the presidential candidate who solicited the new, maximum contribution. Without the overall limit, there is no cap on the number of party committees that could participate in a joint fundraising committee.

While the current $70,800 limit is far more money than all but a tiny number of the wealthiest Americans can afford to contribute, when it comes to creating opportunities for corruption, there is a fundamental difference between a $70,800 contribution and a $1.2 million contribution solicited by a president or presidential candidate. And similar, if not worse, opportunities for corruption would be created in Congress if the overall limits were struck down.

For example, House Speaker John Boehner could establish a joint fundraising committee consisting of all of his party’s House candidates. Boehner could then solicit, and McCutcheon (or any other donor) could give, a contribution of as much as $2.2 million in response to the solicitation. Compare that with the $46,200 an individual could give to all federal candidates in 2012.

The million- and multimillion-dollar contributions that would be permitted absent the overall contribution limits are the kind of contributions the Supreme Court has long held can be prohibited to prevent corruption. They are also the kind of contributions the court has held officeholders can be prohibited from soliciting because of the opportunities they create for corruption.

In 2003, the Supreme Court in the McConnell case upheld a ban on the solicitation of large contributions by federal officeholders and candidates. The court said, “Large soft-money donations at a candidate’s or officeholder’s behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder.” The court further stated, “Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself.”

If the court strikes down the overall contribution limit in McCutcheon, it will also eviscerate the ban on the solicitation of large contributions by federal officeholders. History shows that in American politics, candidates solicit the maximum amounts they legally can, and wealthy donors respond. That is precisely what happened in the 2012 presidential election.

Consider this: In the 2012 election, 283 individuals each made contributions of $250,000 or more to Super PACs, according to the Center for Responsive Politics. Absent the overall contribution limits that apply to federal candidates and parties, donors will be able to give similar huge contributions directly to candidates and parties.

Contributions made directly to candidates and parties are different from contributions to outside spending groups, such as Super PACs, according to the Supreme Court. The court has held repeatedly that large contributions to candidates and parties create opportunities for corruption, whereas in Citizens United the court said that money spent independently by outside groups does not pose a threat of corruption.

The distinction is vital to American democracy. It reflects the fact that the direct link between big donors and officeholders creates the most dangerous opportunities for corruption – for the purest form of legalized bribery. Influence-seeking big donors want to provide their checks directly to those officeholders from whom they can obtain favorable treatment in return for their money.

Furthermore, it is not as if the overall limits are starving candidates and parties of resources to communicate with voters. Federal candidates and their parties spent $5.2 billion, or 83 percent of the total expenditures, in the 2012 national election, even with the overall limits in place.

If the Supreme Court struck down the overall contribution limits, it would recreate the system of legalized corruption that existed prior to Watergate and might well open the door to striking down all of the remaining contribution limits. This in turn would take us back to the Robber Baron era of the 19th century, when members of Congress were functionally owned and controlled by wealthy interests.

And that would be an unmitigated disaster for America.

Fred Wertheimer is president of Democracy 21 and an attorney on an amicus brief filed for Representatives Chris Van Hollen and David Price in the Supreme Court in the McCutcheon case to defend the overall limits on federal contributions.