Center for Competitive Politics urges the Supreme Court not to defer to Congress when reviewing contribution limits

ALEXANDRIA, VA. The Center for Competitive Politics announced today that it filed an amicus curiae brief in the United States Supreme Court supporting the plaintiffs in the case of McCutcheon v. FEC (No. No.12-536).  The case presents a First Amendment challenge to the aggregate contribution limits regime set up by the Bipartisan Campaign Reform Act (“BCRA,” also known as McCain-Feingold).

In its friend-of-the-court brief, CCP urges the Court to put teeth into rigorous review of laws regulating political speech and suggests that courts err in granting excessive deference to Congress, which has a vested self-interest in these laws and is demonstrably not possessed of “particular expertise.”  The brief notes that “Of course, these two options are not mutually exclusive. Some members of Congress may be conniving, and others ignorant.”

Since the foundational case of Buckley v. Valeo in 1976, the Court has mandated a “rigorous standard of review,” but the application of that review has been inconsistent. Most troubling, lower courts have shown too much deference to the pronouncements of Congress.

“In this case, no record exists” for the justification of the law during its consideration by Congress, says the brief.  “Despite extensive research, amicus could locate no record regarding any of the Bipartisan Campaign Reform Act’s aggregate limits. Amicus reviewed all references to ‘aggregate limits’ and all permutations of the phrase that appear in the Congressional Record for the 107th Congress. This review included statements on the House and Senate floors, and all relevant committee material. Based on this review of the public record, amicus submits that no member of Congress made any substantive representation as to the purpose of the aggregate limits.”

Furthermore, the brief notes, “Neither the lower court nor the FEC offered any evidence supporting the contention that the individual aggregate limits address either corruption or a credible threat of circumvention.”

“The Supreme Court has consistently said that, because contribution limits implicate the First Amendment, judges must submit them to a heightened standard of review,” said CCP Legal Director Allen Dickerson. “Deference to the legislature, especially in the absence of any record, is inconsistent with the judiciary’s duty to defend our First Amendment liberties from legislative overreach.”

A copy of the brief can be found here.  The brief’s “Summary of the Argument” text appears below.

The Center for Competitive Politics is counsel in another challenge to aggregate limits before the Supreme Court. That lawsuit, James v. FEC (No. 12-683), is premised on different facts and a different legal argument. However, both cases argue that the First Amendment requires the government to carefully tailor its regulation of political expression and association. The current aggregate contribution limit regime fails to do so.

For more information or to set up an interview with Allen Dickerson, please contact Sarah Lee, CCP Communications Director, at 770.598.7961.

The Center for Competitive Politics promotes and defends the First Amendment’s protection of political rights of speech, assembly, and petition. It is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

 

SUMMARY OF ARGUMENT

 

The district court’s decision to uphold the aggregate individual contribution limits of the Bipartisan Campaign Reform Act (“BCRA”), codified at 2 U.S.C. § 441a(a), did not reflect the exacting review demanded by the First Amendment interests implicated here. Even if the court were correct in declining to apply strict scrutiny, contribution limits must still be “closely drawn to match a sufficiently important interest.” McConnell v. FEC, 540 U.S. 93, 136 (2003). While noting this standard, the district court failed to adequately apply it.

 

This error stems, in part, from confusion over the proper standard of review for contribution limits. In particular, the tailoring prong of such analysis has often been replaced by deference to legislators’ “particular expertise” regarding “the cost and nature of running for office.” Randall v. Sorrell, 548 U.S. 230, 248 (quoting McConnell, 540 U.S. at 137).

 

Such deference is mistaken in this case, and should be reconsidered generally. Where, as here, the Congress failed to generate any substantive record to justify its legislative approach, the rationale for judicial deference collapses. Moreover, such deference substantially increases the likelihood that legislative action will disproportionately serve the interests of incumbent politicians. Finally, the premise undergirding deference to legislative pronouncements in this area – that legislators actually possess expertise in the area of campaign finance – may be fundamentally mistaken.

 

Contribution limits implicate “the most fundamental” First Amendment interests. Buckley v. Valeo, 424 U.S. 1, 14 (1976). This Court has consequently demanded that they be subjected to heightened judicial scrutiny. Deference to the Congress, especially in the absence of any relevant legislative record, is inconsistent with that requirement and fails to adequately safeguard the First Amendment’s guarantees.

 

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The Center for Competitive Politics is now the Institute for Free Speech.