Serving the Flathead Valley & Montana since 2006. A reality based independent journal of observation & analysis. © James Conner.
Chief Justice Roberts’ opinion in McCutcheon leaves a sky that is not falling, but may be darkening. Only the limits on aggregate contributions were struck down by the court. The limits on how much an individual can give to a candidate remain in full force. What critics of McCutcheon fear is that it takes us another step closer to the abyss of no limits on private contributions in politics, and another step farther away from campaigns financed solely by the public.
The heart of Roberts’ argument is found on Pages 15–16:
…An aggregate limit on how many candidates and committees an individual may support through contributions is not a “modest restraint” at all. The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.
To put it in the simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base limits Congress views as adequate to protect against corruption. The individual may give up to $5,200 each to nine candidates, but the aggregate limits constitute an outright ban on further contributions to any other candidate (beyond the additional $1,800 that may be spent before reaching the $48,600 aggregate limit). At that point, the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance — clear First Amendment harms that the dissent never acknowledges.
It is no answer to say that the individual can simply contribute less money to more people. To require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process. And as we have recently admonished, the Government may not penalize an individual for “robustly exercis[ing]” his First Amendment rights. Davis v. Federal Election Comm’n, 554 U. S. 724, 739 (2008).
I do not agree with all of Roberts’ arguments. His view that only a criminal act such as bribery corrupts the political process is a head-in-the sand approach to political reality. But the paragraphs above are hard to refute, and in my opinion they were not effectively refuted by Justice Breyer’s dissent.