McCutcheon v FEC: The Harvest of Pernicious Seeds

Alecia Johns - 20th April 2014

The US Supreme Court very recently handed down its decision in McCutcheon v Federal Election Commission, undoubtedly the most important campaign finance ruling since its controversial 2010 judgment in Citizens United.

In a 5-4 decision, the Court ruled to abolish aggregate contribution limits which restricted how much an individual donor may contribute in total to all candidates or committees within a given election cycle. However, the Court left intact base limits which restrict the amount a donor may contribute to a single candidate or committee. Therefore, provided that contributions to single candidates and committees respect the requisite base limits, an individual donor may potentially contribute millions in aggregate support for a particular party.

Not surprisingly, many have decried the decision as exacerbating the already unequal influence and power possessed by wealthy donors (see here and here). In a powerful dissent, Breyer J lamented that the 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 highly contested decision is partly grounded on two premises, drawn in great measure from the Court’s  previous rulings in Buckley v Valeo and Citizens United. As long as these two premises remain intact, future attempts to uphold campaign finance regulations will prove equally Sisyphean in nature:

[1] The relative equalisation of political speech and influence among citizens is not deemed to be a legitimate state interest

In Buckley the Court held that: ‘The concept that the government may restrict the speech of some elements in our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.’ Following Buckley, the Court in McCutcheon noted that Congress may not seek to regulate contributions in an attempt to restrict the political participation of some in order to enhance the relative influence of others. The only legitimate state interest was therefore held to be the prevention of corruption.

By deeming any equalisation rationale an impermissible state objective, the Court ignores the First Amendment rights of those whose voices are drowned out in the wake of the undue influence exerted by wealthy donors. The dissent sought to take the rights of such persons into consideration by arguing, quite circuitously, that the state interest in anti-corruption is itself rooted in the First Amendment given the public interest in collective speech. This argument was, of course, rejected by the plurality. The fact is, until the equalisation of influence is explicitly deemed a legitimate state interest, the Court remains at liberty to further the First Amendment interests of wealthy donors, without taking into account the corresponding, diminishing effect on the political influence of those less fortunate.

[2] The narrow definition of corruption as limited to quid pro quo and excluding general influence and access

In limiting the State’s objective to the prevention of corruption, following Citizens United, the Court further circumscribed the kind of corruption which the State may seek to prevent: quid pro quo agreements, defined as the exchange of an official act for money. The Court held that this is to be distinguished from the permissible ‘general influence and access’ which a donor may receive on account of his contribution. The Court therefore held that the main mischief to be prevented was the contribution of large amounts of money to individual candidates. On the other hand, the broad-based support of a political party, by giving within the base limit to a large number of its candidates, was remarkably held not to possess a potentially corrupting influence. The dissent objected to this narrow definition of corruption, noting that in the Court’s previous rulings, (with the exception of Citizens United), corruption was understood ‘not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgement’.

The plurality’s untenably narrow definition of corruption paves the way for future successful challenges to the constitutionality of other campaign finance regulations. This is underscored when one considers the Court’s holding that, in drawing the admittedly vague line between general influence and quid pro quo, the Court will ‘err on the side of protecting political speech rather than suppressing it.’ However the irony is that, in its rejection of the equalisation rationale, the Court’s approach to ‘protecting political speech’, invariably suppresses the voice of those unable to match the financial resources of wealthy, well-connected donors.

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Alecia Johns is a D.Phil. Candidate in Law at Balliol College, Oxford.


Alecia Johns ‘McCutcheon v FEC: The Harvest of Pernicious Seeds Sown in Buckley and Citizens United’ (OxHRH Blog, 20 April 2014) <> [date of access].


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