The Difference Between McCutcheon and Citizens

The media is abuzz about the Supreme Court hearing McCutcheon v. Federal Election Commission, a purported "sequel" to Citizens United. In Citizens United, the Supreme Court upheld the First Amendment right of corporations to spend money -- without limit -- creating and airing political ads. In McCutcheon, the Court is asked to strike down aggregate limits on contributions to candidates ($46,200 every two years) and political committees ($70,800 every two years).

There is an important and constitutionally relevant distinction between making one's own ads and giving money to candidates, however. Eugene Volokh expertly laid out the difference in Parts II and III of this 2000 law-review article, and Charles Fried recently made a similar point in The New York Times.

First off, critics of Citizens are correct that money is not speech. If money were speech, bribery would be a constitutional right. It's not.

What the critics miss, though, is that exercising a legitimate constitutional right often entails spending money -- and limits on such expenditures also limit the underlying right. For example, imagine a law that made it a crime to spend money on abortions; no one would claim that this comports with Roe v. Wade. And yet such a law would follow the very logic that Citizens critics apply to money spent on the First Amendment activity of criticizing or promoting candidates on television and radio.

But it's possible to take this idea too far. Again, it makes little sense to call the act of giving money an example of speech in itself, as some conservatives do. Further, the right to free speech is not absolute -- and limits on contributions to campaigns resemble other accepted limitations. As Volokh wrote:

Restrictions on contributions to candidates that are justified by a concern with quid pro quo corruption are similar to content-neutral speech restrictions. They apply the same principle that underlies the broader restraints on any valuable gifts to officeholders, restraints that are likewise justified by the concern that a gift may be a covert bribe.

On their face, contribution restrictions bar all contributions of money to political campaigns, regardless of the content of the speech that the contribution is fostering, or even of whether the contribution is being used for speech. And they are justified without reference to the communicative impact of speech: The concern that a contribution might be a tacit bribe doesn’t turn on the communicative impact of the speech for which the contribution is likely to be spent.

The Citizens ruling didn't explicitly spell out this reasoning, but it didn't violate it, either -- the corporation Citizens United had made its own documentary about Hillary Clinton and tried to advertise it; the case wasn't about giving money to candidates or committees. It would not be inconsistent with Citizens for the Court to go the other way in McCutcheon, ruling that money in itself does not constitute speech, even though spending money to facilitate legitimate acts of speech is a protected right.

Citizens was 5-4, so only one justice who supported Citizens would have to buy into this distinction to create a majority in the opposite direction. With that in mind, here's an AP report gauging the justices' reactions during arguments yesterday.

Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen

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