It is assumed that if the Court in McCutcheon revises the standard of review for contributions, it will do so to overthrow Buckley and to bring the standards for contributions and expenditures into alignment. Certainly this is a possibility, and it is the outcome being urged by Senator McConnell and dreaded by prominent voices in the reform community.

Of course, the Court has other choices. Depending how it goes about the task, the Court could improve on the Buckley jurisprudence without destroying altogether the contribution/expenditure distinction. The Court’s treatment of contributions and expenditures does not have to be same in order for the approach to contributions to be better—more rigorous in construction and more convincing in application—than it is today.

The standard is well known—a contribution restriction is a “marginal” infringement of speech and associational rights that will be found constitutional if it is closely drawn to meet a sufficiently important government interest. Buckley v. Valeo, 424 U.S. 1. 20, 25-6 (1976). The central question is when a limit would fail this test. And that answer to that is rarely, and only if the limit as applied is so “dramatic,” “severe” or “radical” that it virtually extinguishes meaningful speech or association. Buckley at 21; Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 397 (2000). The Court has said that a contribution limit raises constitutional concern if it virtually silences the speaker, “driv[ing] the sound of a candidate’s voice below the level of notice.” Nixon at 397. Congressional discretion in setting limits is exceedingly broad, enjoying broad protection from judicial second-guessing.

But then the Court has had to address specific cases where the limits have been set so low—in the hundreds of dollars, or even at zero—when it could be said, in fact, that the speaker had been silenced. In neither case—the contribution reduced to a few hundred dollars, or prohibited altogether—have the Court’s standards proven clear or persuasive.

In Randall v. Sorrell, 548 U.S. 230 (2006), the Court invalidated a scheme of stingy limits for parties and candidates, and Justice Breyer came up with a complicated doctrinal improvisation that looks for “warning signs” that Congress had misused its generous authority to set limits. Only one other member of the majority, Justice Alito, joined Breyer in adopting this analytical scheme.

Also striking is the interest that Justice Breyer’s jurisprudence was seeking to protect. It turned out to be the effect on the whole of these limits on the ability of candidates and parties to wage competitive campaigns. The damage done to the electoral process was systemic, and it was accomplished by blocking the political actors’ access to sufficient funds. Randall at 248-249 (“[C]ontribution limits that are too low can also harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.”) The speech or associational rights of the donor count for little in the Breyer analysis, except as a secondary effect of the harm overall to a healthy electoral process.

And in the case where the donor can give nothing at all, as in the case of corporations and unions, the Court’s standard hits a wall. It turns out that a legislature may indeed prohibit any contribution at all; it may silence the speaker. In Federal Election Commission v. Beaumont, 539 U.S. 146 (2003), the durability of which has been called into question by Citizens United, the Court upheld an absolute ban on contributions by corporations—in this instance, a nonprofit corporation. The Court here disagreed that a ban extinguishes the voices of the contributor, taking refuge in the notion that the corporate donor can still make a contribution—through the alternative of creating a political action committee. If unable to give as an entity and in its own name, with general treasury funds, the corporation can serve as the vehicle for pooling individual shareholder and executive funds and parcel these out as contributions from its PAC.

The Beaumont-type analysis won’t help the Court in McCutcheon, because the contributor who reaches the aggregate limit cannot give to any more candidates and lacks the alternative on which the Beaumont Court relies. The next candidate after the limit is reached is out of luck, as is the contributor who is unable to exercise her speech and association rights in relation to that candidate. It does not seem sufficient for the contributor to resort to independent expenditures on behalf of that candidate, for Buckley tells us that contributions and expenditures are different and that contributions serve specific, if “symbolic,” speech and associational interests. Buckley at 21. Independent expenditures are an alternative only where a donor has made a contribution and wishes to provide a candidate with still more support. Buckley at 21-2 (“The overall effect of the Act’s contribution ceilings is merely to … compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression.”)(emphasis added). Independent expenditures are not an answer to a complete ban on contributing to a candidate.

The Court’s standard of review for contributions very clearly indicates a high tolerance for limits but it does not so lucidly establish the outer bounds of that tolerance or pinpoint the interests—speech, association or the health of the electoral process— to be weighed in the constitutional balance. Randall is sui generis. Beaumont has come under the shadow of Citizens United and may not emerge from it. Maybe McCutcheon settles nothing, maybe it demolishes the contribution or expenditure distinction, or maybe the Court, however it resolves the case, leaves the jurisprudence of contribution limits in a better place.

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