McCutcheon v. FEC

572 U.S. _

Case Year: 2014

Case Ruling: 5-4, Reversed and Remanded

Opinion Justice: Roberts

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Alito, Kennedy, Scalia, Thomas


1st Concurring Opinion

Author: Thomas


1st Dissenting Opinion

Author: Breyer

Joiner(s): Ginsburg, Kagan, Sotomayor

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


The Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), limits campaign contributions to candidates for federal office and contributions to noncandidate political organizations in two ways. First, the law’s base limits restrict the amount any individual can give to any particular candidate or organization. Second, the law’s aggregate limits impose a ceiling on the total amount an individual may give to all candidates or organizations in any two-year election cycle. The aggregate contribution limits, therefore, have the effect of restricting the number of candidates or organizations a donor may support.

For example, the base limits for the 2013–2014 election cycle permitted an individual to contribute up to $5,200 ($2,600 for the primary election and $2,600 for the general election) to any one candidate; $32,400 per year to a national party committee; $10,000 per year to a state or local party committee; and $5,000 per year to a political action committee, or “PAC.”

The 2013–2014 aggregate limits allowed an individual to contribute a total of $48,600 to federal candidates and a total of $74,600 to other political committees. Of that $74,600, only $48,600 could be contributed to state or local party committees and PACs, as opposed to national party committees. All told, an individual could contribute up to $123,200 to candidate and noncandidate committees during the two-year election cycle.

During the 2011–2012 election cycle, Shaun McCutcheon, the Chief Executive Officer of an Alabama engineering company, contributed a total of $33,088 to sixteen different candidates. Each of these contributions was within the base limits set by federal regulations. McCutcheon, however, wanted to make contributions to twelve additional candidates, again complying with the base limitations for each. However, doing so would put McCutcheon over the $48,600 aggregate contribution limit imposed by the law. He faced similar aggregate limit restrictions on his contributions to various political organizations. In addition, he claimed that his projected political contributions for the 2013–2014 election cycle also would be blocked by the aggregate limits.

McCutcheon joined with the Republican National Committee (RNC; one of McCutcheon’s intended contribution recipients) to sue the Federal Election Commission, claiming that the aggregate limits violated the First Amendment. In McCutcheon’s words, “Somehow, I can give the individual limit, now $2,600, to 17 candidates without corrupting the system. But as soon as I give that same amount to an 18th candidate, our democracy is suddenly at risk.”

A three-judge district court found that the aggregate limits are justified by the government’s interests in combatting actual and perceived electoral corruption. McCutcheon and the RNC appealed directly to the Supreme Court.



There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. Buckley v. Valeo (1976). At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

Many people might find those latter objectives attractive: They would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition. Indeed, as we have emphasized, the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy(1971).

In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.” Citizens United v. Federal Election Comm’n (2010). They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.

Any regulation must instead target what we have called “quid pro quo” corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money. “The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Federal Election Comm’n v. National Conservative Political Action Comm. (1985). Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” Bennett. And those who govern should be the last people to help decide who should govern.

The statute at issue in this case imposes two types of limits on campaign contributions. The first, called base limits, restricts how much money a donor may contribute to a particular candidate or committee. The second, called aggregate limits, restricts how much money a donor may contribute in total to all candidates or committees.

This case does not involve any challenge to the base limits, which we have previously upheld as serving the permissible objective of combatting corruption. The Government contends that the aggregate limits also serve that objective, by preventing circumvention of the base limits. We conclude, however, that the aggregate limits do little, if anything, to address that concern, while seriously restricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment. . . .

Buckley recognized that “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.” But it distinguished expenditure limits from contribution limits based on the degree to which each encroaches upon protected First Amendment interests. Expenditure limits, the Court explained, “necessarily reduce the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” The Court thus subjected expenditure limits to “the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.” Under exacting scrutiny, the Government may regulate protected speech only if such regulation promotes a compelling interest and is the least restrictive means to further the articulated interest. See Sable Communications of Cal., Inc. v. FCC (1989).

By contrast, the Court concluded that contribution limits impose a lesser restraint on political speech because they “permit the symbolic expression of support evidenced by a contribution but do not in any way infringe the contributor’s freedom to discuss candidates and issues.” Buckley. As a result, the Court focused on the effect of the contribution limits on the freedom of political association and applied a lesser but still “rigorous standard of review.” Under that standard, “[e]ven a ‘“significant interference” with protected rights of political association’ may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.” . . .

Although Buckley provides some guidance, we think that its ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here. Buckley spent a total of three sentences analyzing that limit; in fact, the opinion pointed out that the constitutionality of the aggregate limit “ha[d] not been separately addressed at length by the parties.” We are now asked to address appellants’ direct challenge to the aggregate limits in place under BCRA. BCRA is a different statutory regime, and the aggregate limits it imposes operate against a distinct legal backdrop.

Most notably, statutory safeguards against circumvention have been considerably strengthened since Buckley was decided, through both statutory additions and the introduction of a comprehensive regulatory scheme. With more targeted anticircumvention measures in place today, the indiscriminate aggregate limits under BCRA appear particularly heavy-handed. . . .

The 1976 FECA Amendments, for example, added another layer of base contribution limits. The 1974 version of FECA had already capped contributions from political committees to candidates, but the 1976 version added limits on contributions to political committees. This change was enacted at least “in part to prevent circumvention of the very limitations on contributions that this Court upheld in Buckley.”. . .

The 1976 Amendments also added an antiproliferation rule prohibiting donors from creating or controlling multiple affiliated political committees. The Government acknowledges that this antiproliferation rule “forecloses what would otherwise be a particularly easy and effective means of circumventing the limits on contributions to any particular political committee.” In effect, the rule eliminates a donor’s ability to create and use his own political committees to direct funds in excess of the individual base limits. It thus blocks a straightforward method of achieving the circumvention that was the underlying concern in Buckley. . . .

The First Amendment “is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” Cohen v. California (1971). As relevant here, the First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association. When an individual contributes money to a candidate, he exercises both of those rights: The contribution “serves as a general expression of support for the candidate and his views” and “serves to affiliate a person with a candidate.”

Those First Amendment rights are important regardless whether the individual is, on the one hand, a “lone pamphleteer or street corner orator in the Tom Paine mold,” or is, on the other, someone who spends “substantial amounts of money in order to communicate [his] political ideas through sophisticated” means. FEC v. National Conservative Political Action Comm. (1985). Either way, he is participating in an electoral debate that we have recognized is “integral to the operation of the system of government established by our Constitution.” Buckley.

Buckley acknowledged that aggregate limits at least diminish an individual’s right of political association. As the Court explained, the “overall . . . ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support.” But the Court characterized that restriction as a “quite modest restraint upon protected political activity.” We cannot agree with that characterization. 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 (2008). . . .

The dissent faults this focus on “the individual’s right to engage in political speech,” saying that it fails to take into account “the public’s interest” in “collective speech.” . . .

But there are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good. First, the dissent’s “collective speech” reflected in laws is of course the will of the majority, and plainly can include laws that restrict free speech. The whole point of the First Amendment is to afford individuals protection against such infringements. . . .

Second, the degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process. The First Amendment does not contemplate such “ad hoc balancing of relative social costs and benefits.” United States v. Stevens (2010).

Third, our established First Amendment analysis already takes account of any “collective” interest that may justify restrictions on individual speech. Under that accepted analysis, such restrictions are measured against the asserted public interest (usually framed as an important or compelling governmental interest). . . . [W]e do not doubt the compelling nature of the “collective” interest in preventing corruption in the electoral process. But we permit Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech. . . .

Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—“quid pro quo” corruption. . . .

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. And because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.

The dissent advocates a broader conception of corruption, and would apply the label to any individual contributions above limits deemed necessary to protect “collective speech.”. . .

The difficulty is that once the aggregate limits kick in, they ban all contributions of any amount. But Congress’s selection of a $5,200 base limit indicates its belief that contributions of that amount or less do not create a cognizable risk of corruption. If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801, and all others corruptible if given a dime. And if there is no risk that additional candidates will be corrupted by donations of up to $5,200, then the Government must defend the aggregate limits by demonstrating that they prevent circumvention of the base limits. . . .

. . . For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley. They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.” Buckley.

The judgment of the District Court is reversed, and the case is remanded for further proceedings.

It is so ordered.


I adhere to the view that this Court’s decision in Buckley v. Valeo (1976) denigrates core First Amendment speech and should be overruled.

Political speech is “the primary object of First Amendment protection” and “the lifeblood of a self-governing people.” Contributions to political campaigns, no less than direct expenditures, “generate essential political speech” by fostering discussion of public issues and candidate qualifications. Buckley itself recognized that both contribution and expenditure limits “operate in an area of the most fundamental First Amendment activities” and “implicate fundamental First Amendment interests.” But instead of treating political giving and political spending alike, Buckley distinguished the two, embracing a bifurcated standard of review under which contribution limits receive less rigorous scrutiny. . . .

. . . [W]hat remains of Buckley is a rule without a rationale. Contributions and expenditures are simply “two sides of the same First Amendment coin,” and our efforts to distinguish the two have produced mere “word games” rather than any cognizable principle of constitutional law. For that reason, I would overrule Buckley and subject the aggregate limits in BCRA to strict scrutiny, which they would surely fail.

This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment. Until we undertake that reexamination, we remain in a “halfway house” of our own design. For these reasons, I concur only in the judgment.


Nearly 40 years ago in Buckley v. Valeo (1976), this Court considered the constitutionality of laws that imposed limits upon the overall amount a single person can contribute to all federal candidates, political parties, and committees taken together. The Court held that those limits did not violate the Constitution.

The Buckley Court focused upon the same problem that concerns the Court today, and it wrote:


“The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.”


Today a majority of the Court overrules this holding. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Taken together with Citizens United v. Federal Election Comm’n (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve. . . .

The plurality’s conclusion rests upon . . . separate but related claims. Each is fatally flawed. . . .

The plurality’s first claim—that large aggregate contributions do not “give rise” to “corruption”—is plausible only because the plurality defines “corruption” too narrowly. The plurality describes the constitutionally permissible objective of campaign finance regulation as follows: “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” It then defines quid pro quo corruption to mean no more than “a direct exchange of an official act for money”—an act akin to bribery. It adds specifically that corruption does not include efforts to “garner ‘influence over or access to’ elected officials or political parties.” Moreover, the Government’s efforts to prevent the “appearance of corruption” are “equally confined to the appearance of quid pro quo corruption,” as narrowly defined. In the plurality’s view, a federal statute could not prevent an individual from writing a million dollar check to a political party (by donating to its various committees), because the rationale for any limit would “dangerously broade[n] the circumscribed definition of quid pro quo corruption articulated in our prior cases.”

This critically important definition of “corruption” is inconsistent with the Court’s prior case law (with the possible exception of Citizens United . . .). It is virtually impossible to reconcile with this Court’s decision in McConnell, upholding the Bipartisan Campaign Reform Act of 2002 (BCRA). And it misunderstands the constitutional importance of the interests at stake. In fact, constitutional interests—indeed, First Amendment interests—lie on both sides of the legal equation.

In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself.

Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives. . . .

What has this to do with corruption? It has everything to do with corruption. Corruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress’ concern that a few large donations not drown out the voices of the many.

That is also why the Court has used the phrase “subversion of the political process” to describe circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.”

The “appearance of corruption” can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether. Democracy, the Court has often said, cannot work unless “the people have faith in those who govern.”

The upshot is that the interests the Court has long described as preventing “corruption” or the “appearance of corruption” are more than ordinary factors to be weighed against the constitutional right to political speech. Rather, they are interests rooted in the First Amendment itself. They are rooted in the constitutional effort to create a democracy responsive to the people—a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects. Given that end, we can and should understand campaign finance laws as resting upon a broader and more significant constitutional rationale than the plurality’s limited definition of “corruption” suggests. We should see these laws as seeking in significant part to strengthen, rather than weaken, the First Amendment. To say this is not to deny the potential for conflict between (1) the need to permit contributions that pay for the diffusion of ideas, and (2) the need to limit payments in order to help maintain the integrity of the electoral process. But that conflict takes place within, not outside, the First Amendment’s boundaries.

Since the kinds of corruption that can destroy the link between public opinion and governmental action extend well beyond those the plurality describes, the plurality’s notion of corruption is flatly inconsistent with the basic constitutional rationale I have just described. Thus, it should surprise no one that this Court’s case law (Citizens United excepted) insists upon a considerably broader definition. . . .

The plurality invalidates the aggregate contribution limits for a second reason. It believes they are no longer needed to prevent contributors from circumventing federal limits on direct contributions to individuals, political parties, and political action committees. Other “campaign finance laws,” combined with “experience” and “common sense,” foreclose the various circumvention scenarios that the Government hypothesizes. Accordingly, the plurality concludes, the aggregate limits provide no added benefit.

The plurality is wrong. Here, as in Buckley, in the absence of limits on aggregate political contributions, donors can and likely will find ways to channel millions of dollars to parties and to individual candidates, producing precisely the kind of “corruption” or “appearance of corruption” that previously led the Court to hold aggregate limits constitutional. Those opportunities for circumvention will also produce the type of corruption that concerns the plurality today. The methods for using today’s opinion to evade the law’s individual contribution limits are complex, but they are well known, or will become well known, to party fundraisers. . . .

In sum, the explanation of why aggregate limits are needed is complicated, as is the explanation of why other methods will not work. But the conclusion is simple: There is no “substantial mismatch” between Congress’ legitimate objective and the “means selected to achieve it.” The Court, as in Buckley, should hold that aggregate contribution limits are constitutional. . . .

. . . The result [of the plurality’s reasoning] is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.

With respect, I dissent.