Amicus Brief to the Supreme Court in McCutcheon v. FEC

Amicus Brief to the Supreme Court in McCutcheon v. FEC

July 25, 2013

This brief is filed on behalf of amici curiae Communications Workers of America, Greenpeace, NAACP, Sierra Club, the American Federation of Teachers, Main Street Alliance,, People for the American Way Foundation, Rock the Vote, U.S.PIRG, the Working Families Organization, and Dēmos. Amici collectively represent millions of Americans who are concerned about the effect of large campaign contributions on the integrity and responsiveness of the United States government. A description of each amicus is included in an Appendix to this Brief.

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This Court has long grounded its campaign finance jurisprudence on the government’s compelling interest in fighting corruption or its appearance. Fighting the perception and the reality of a democratic government corrupted by the improper influence of financial support, however, is more than just a compelling reason for regulation; it is a responsibility of any democratic government. Legitimacy – the belief by the people that they are fairly represented – after all, is a first principle of democratic governance.

Aggregate contribution limits function in tandem with base contribution limits to protect the legitimacy of our democratic government by combatting the perception and reality of corruption. Aggregate limits ensure that no one donor can find ways to funnel hundreds of thousands of dollars to a candidate or a party, and candidates and officeholders cannot solicit huge sums from a single donor – which evidence suggests would foster a belief among the public that elected officials are improperly influenced by such large contributions. At the same time, contribution limits impose only an indirect burden on speech and thus are not subject to strict scrutiny. For these reasons, this Court upheld aggregate contribution limits in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and has had no cause to reconsider this sound principle.

Appellants ask this Court to overrule settled precedent regarding contribution limits at a particularly inopportune time, because even with these limits in place public confidence in U.S. government is by some measures at an all-time low. Public opinion data demonstrate that this lack of confidence in government is tied to the widespread perception that government is more responsive to financial supporters than to voters or the public interest, and is corrupted by the improper influence of money in campaigns. 

Recent political science research has demonstrated more clearly than ever before that this public concern is not speculative or irrational but rather quite closely tethered to reality. Campaign funding has long been the province of large donors, but the near-dominance of a tiny fraction of the U.S. population over contributions to federal candidates has escalated in recent years. Important new research has documented that the wealthy have starkly different policy priorities than the general public, especially on economic issues, and that government in the U.S. responds differentially – often dramatically so – to the preferences of those who are able to make large campaign contributions, even when these preferences run counter to those of the general public. This particularly affects communities of color, which are far less likely to be represented among the ranks of those whose policy preferences appear to influence officeholders. Campaign finance is a significant factor in this dynamic.

Striking aggregate contribution limits will exacerbate problems of corruption and its appearance. See infra Point IV. Without these limits, a small cadre of donors will be able to contribute millions of dollars to candidates, parties, and political action committees, and candidates and officeholders will be permitted to solicit large sums from potential donors, functionally reviving the “soft money” system that Congress acted to end a mere 11 years ago. This will provide further (and renewed) incentive for federal candidates and officeholders to grant these donors improper influence, skewing policy outcomes more and more towards the preferences of donors as opposed to those of the general public.

Perceptions of corruption are already at dangerous levels in the United States. These perceptions are not irrational fears but rather reasoned reactions to a system that is more responsive to the policy preferences of a narrow segment of the electorate as a result of the improper influence gained through large financial contributions. This Court must not risk undermining the legitimacy of our Republic by overturning longstanding precedent to strike a key bulwark against the reality and appearance of corruption of our democratic government.