The Turning Tide Recently, there has been great debate over America’s campaign finance reform. For decades, politicians and social activists have been calling upon Congress to pass renewed legislation, curbing the influence of private money over public elections. However, the past several years have seen a shift in the tone of this conversation. In the wake of Citizens United v. Federal Election Commission, opponents of campaign finance reform have begun pushing not only to stall increased restrictions, but to completely overturn the regulations already in place. With this landmark decision lending judicial support to the old political truism “money talks,” the field has opened up for opponents of today’s campaign finance laws to challenge existing statutes and attempt to loosen restrictions on both spending and contributions. More important, it seems the Supreme Court is increasingly receptive of these arguments, as demonstrated by its recent decision in McCutcheon v. Federal Election Commission. Having dismantled a decades-old constitutional formula that sat at the core of America’s democracy, the court has left the constitutionality of campaign finance regulation vulnerable to attack.

Functional Effects of _McCutcheon_ Prior to McCutcheon, the 1974 Federal Election Campaign Act mandated two caps on federal campaign contributions, designed and upheld as a means of preventing political corruption or the appearance of corruption. The first, known as a base limit, dictated the amount of money an individual donor could give to any one candidate, party, or political committee in a single election cycle. The second, known as an aggregate limit, placed a ceiling on the total amount that such donors could give to all recipients in a two-year election period (Denniston, SCOTUS Blog). Ruling that the latter unconstitutionally restrained free speech, the McCutcheon court struck down biennial aggregate limits (McCutcheon), removing the constraint on an individual’s overall contributions in a given election cycle. While donors remain restricted in what they can contribute to individual candidates or committees, they are now free to “max out” with as many committees as they choose. Campaign finance law, as it stood pre-_McCutcheon_, demanded that campaigns acquire funds from a large, diverse body of contributors, thus preventing them from being controlled by the deep pockets of a small group. Aggregate limits, specifically, decreased the risk that wealthy donors influence campaigns more than individuals with less to contribute monetarily. Now, without a cap on total contributions, base limits are rendered functionally useless, as individuals can circumvent them by giving money to several different entities all associated with the same campaign.

Spending and Speech The more startling effect of McCutcheon is the potential threat it poses to Buckley v. Valeo, a landmark case that upheld the constitutionality of limits on federal campaign contributions. According to Buckley, limits on individual expression are sufficiently balanced by the need for government protection to justify caps on contributions under an intermediate scrutiny test. Furthermore, that case established the view that political contributions do not constitute speech. Rather, the court held that limits on donations only restrain political association (Denniston, SCOTUS Blog). Unlike campaign spending, which can be considered an explicit form of speech, contributions are a form of advocacy; individuals give money to politicians or committees to allow that third party to speak, but they themselves are not engaged in direct expression. It is precisely this reasoning that the court has repeatedly relied on to validate legislation mandating caps on political donations. The notion that money does not always equal speech is perhaps the most significant tool in protecting our elections from becoming spending free-for-alls, ripe for manipulation by wealthy donors. However, now that the court has ruled against aggregate limits, this contribution/expenditure binary has lost a great deal of its force. As Justice Thomas noted in his McCutcheon concurrence, “what remains of Buckley is a rule without a rationale” (McCutcheon). Though the case has not yet been overruled, its reasoning has been dangerously weakened, and exposed to attack by opponents of campaign finance regulation. If aggregate donations are to be treated as a form of speech, entitled to First Amendment protection and subject to strict scrutiny, the line between expenditures and contributions no longer serves as a reasonable basis for the regulation of certain campaign funds. For the first time in decades, the door is open to question the validity of essential campaign finance laws. Why should the court’s reasoning in McCutcheon not extend to all limits on political contributions? Given the current political climate, it seems only a matter of time until someone makes this argument to challenge the constitutionality of base limits. Alarmingly, such a claim no longer seems implausible.

Preserving Democracy In my opinion, it is vital to uphold Buckley in order to preserve some degree of diversity and representativeness among political donors. I agree that contributing to political campaigns should be considered an act of association, and thus more strictly regulated than outright expression. There are other ways to advocate for a candidate or committee than simply giving money, and politically inclined individuals should be encouraged to explore as many of those opportunities as they choose. There must be a clear distinction between how individuals are allowed to spend their own money and how they are allowed to influence the spending of political candidates. “If that distinction is erased,” says one commentator, and donors are provided the same First Amendment protection afforded to spenders, “the contribution side of campaigns for the presidency and for members of Congress may become as wide open as the spending side has been in the wake of the Citizens United decision” (Denniston, SCOTUS Blog). If individuals are allowed to donate freely, unencumbered by monetary limits, there is no stopping a wealthy minority from seizing economic control of political candidates, and thus shaping the outcome of elections. And a democracy decided by an elite few is not a true democracy.

Works Cited References Denniston, L. (2013, October 5). Argument preview: Campaign finance - again. SCOTUSblog. http://www.scotusblog.com/2013/10/argument-preview-campaign-finance-again/ McCutcheon? , 134 S. Ct. at 1464. McCutcheon? , 134 S. Ct. at 1464 (Thomas, J., concurring).