McCutcheon v. FEC 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.”