Lyle Denniston writes at SCOTUSblog:
The Republican National Committee on Tuesday mounted a fervent new effort to get the Supreme Court to give those who contribute money to political campaigns as much freedom as those who spend money independently to promote candidates and causes. In a sixty-page brief in a case that the Court is to decide at its next Term, the GOP’s national organization argued that the time has come to give donors wider First Amendment freedom to make contributions to parties and candidates.
For the past thirty-seven years, the Court has held fast to the idea that limits on political spending put a heavier burden on political expression than limits on contributions do, and so the government has more power to regulate contributions than spending. The differing approach originated in the Court’s 1976 decision in Buckley v. Valeo, and it has withstood repeated attacks by advocates for donors and even by strong criticism by some Justices themselves — including current Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.
The RNC is seeking to use the new case of McCutcheon v. Federal Election Commission (docket 12-536) as a test of that distinction, arguing that changes in the law and more recent Supreme Court decisions have undermined the rationale for tougher restraints on donations.
The individual donor also involved in the case, Alabaman Shaun McCutcheon, filed a separate brief; it can be read here. That brief, however, confines to a footnote its challenge to “Buckley‘s unsustainable dichotomy between contributions and expenditures.” Even so, the footnote did argue that the Court should not hesitate to overrule that distinction, since it is based on the Constitution and thus cannot be overturned by new legislation.
Both the RNC and McCutcheon urged the Court to use the most rigorous constitutional test — “strict scrutiny” — to judge limitations on campaign contributions. The Court has used various phrases in judging such restrictions, but has never embraced the toughest test. The RNC devoted considerably greater attention to that issue than did McCutcheon.
This case does not involve any challenge to what are called the “base limits” on campaign contributions. Those are the annual limits on what a donor can give to a candidate directly, to a campaign committee, a party, or a party committee. The challenges, rather, are to what are called “aggregate limits” — the total amount that a donor can give to all political recipients during a two-year election cycle. Both the RNC and McCutcheon contended that these overall limits impose a heavier burden on campaign expression than do the base limits, and cannot be justified by any argument that giving to more recipients risks corruption in campaign financing.
Although the Buckley decision did uphold an “aggregate limit” — an overall ceiling during an election cycle — of $25,000, both the
RNC and McCutcheon argued that the Court did so in order to prevent donors from evading the base limits then in effect on contributions. But Congress has changed the law, and blocked off avenues for such evasions, the two briefs argued.
The RNC challenge targets the two-year limit now in effect of $74,600 on donations that it can receive as a political committee that is not an immediate part of a candidate’s campaign organization. The McCutcheon challenge is aimed at the same $74,600 two-year ceiling on contributions to non-candidate committees, and also at the $48,600 two-year ceiling on donations to candidate organizations. While he is willing to abide by the base limits on his contributions to any entity, he wants to give more in the aggregate than the two-year ceilings allow.
Those are the ceilings that will be in effect during the 2013-2014 cycle. . . .