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US Supreme Court renders the system of aggregate contributions on campaign donations unconstitutional.

US Supreme Court renders the system of aggregate contributions on campaign donations unconstitutional.

United States Supreme Court

Shaun McCutcheon, Et Al. V. Federal Election Commission

On Appeal from the United States District Court for the District of Columbia

April 2, 2014

Reported by Linda Awuor & Diana Kerubo.

Brief Facts.

The appellant in this case contributed a total of $33,088 during the 2011-2012 election cycle to 16 different federal candidates. This was in compliance with the base limits applicable as per The Federal Elections Campaign Act, 1971 as amended by the Bipartisan Campaign Reform Act, 2002.The Act set out two types of limits on campaign contributions. First, was the base limit which restricted the amount of money a donor contributed to a particular candidate or committee and the second, set the aggregate limits of contributions which basically affected what an individual contributed directly to committees. The individual remained free to volunteer, join political associations and engage in independent expenditures.

The appellant alleged that the aggregate limits posed prevented him from contributing to 12 additional candidates and to a number of non-candidate political committees. He also claimed that he wished to make similar contributions in the future all within the base limits.

He sought to challenge the system of aggregate limits of contributions claiming that they were unconstitutional under the First Amendment.

The District Court upheld the base limits providing that they appropriately served the Government’s anticorruption interest and concluded that the aggregate limits survived First Amendment scrutiny because they prevented evasion of the base limits.

The Government sought to justify the existence of the aggregate limits, providing that it was to prevent quid pro quo corruption.It argued that the opportunity for corruption existed if a legislator was given a large check (cheque). Thus, the limits were used as a means to deter corruption by exposing large contributions and expenditures publicly. It further provided for the rationale for posing the limits arguing that the aggregate limits prevented an individual from giving too many initial recipients who could then re contribute the donation. It also defended the disclosure requirement as per the Act justifying it as a means to promote governmental interest in providing the electorate with information on the source of election related spending.

Issues:

  •  Whether the system of aggregate limits of contributions were unconstitutional under the First Amendment to the Constitution.
  • Whether the aggregate limits violated the free speech clause of the First Amendment to the Constitution.
  • Whether the limits set fostered government interest in the prevention of corruption.
  • Whether the contributions resulted to circumvention of the donations.

Constitutional Law-interpretation of the Constitution-Constitution of United States-First Amendment-political expression- effect of the aggregate limits on free speech-whether the aggregate limits violated the free speech clause of the First Amendment.

Constitutional Law-political expression and association-election campaign funding-effect of the Federal Election Campaign Act on political campaign contributions-whether the posed aggregate limits for contribution towards campaigns were unconstitutional- First Amendment to the United States Constitution -Federal Election Campaign Act.

Constitution of United States

Amendment I

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It provides for the freedom of political speech through political participation in campaign contributions to candidates, political parties and political action committees. It also guarantees the right of citizens to assemble peaceably and to petition their government.

Federal Elections Campaign Act, 1971

441a.Limitations, contributions, and expenditures

(a)Dollar limits on contributions.

(1)Except as provided in subsection (i) and section 315A (2

U.S.C. § 441a-1), no person shall make contributions—

  1. to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $2,000;
  2. to the political committees established and maintained  by a national political party, which are not the authorized political committees of any candidate, in any calendar year which, in the aggregate, exceed $25,000;
  3. to any other political committee (other than a committee described in subparagraph (D)) in any calendar year  which, in the aggregate, exceed $5,000; or
  4. to a political committee established and maintained by a State committee of a political party in any calendar year  which, in the aggregate, exceed $10,000.

(2) No multicandidate political committee shall make contributions—

  1. to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $5,000;
  2. to the political committees established and maintained by a national political party, which are not the authorized political committees of any candidate, in any calendar year, which, in the aggregate, exceed $15,000; or
  3.  to any other political committee in any calendar  year which, in the aggregate, exceed $5,000.

(3)During the period which begins on January 1 of an odd-numbered year and ends on December 31 of the next even-numbered year, no individual may make contributions aggregating more than—

  1. $37,500, in the case of contributions to candidates and the authorized committees of candidates;
  2.  $57,500, in the case of any other contributions,  of which not more than $37,500 may be attributable to  contributions to political committees which are not political committees of national political parties.

(8) For purposes of the limitations imposed by this section, all contributions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to such candidate shall be treated as contributions from such person to such candidate. The intermediary or conduit shall report the original source and the intended recipient of such contribution to the Commission and to the intended recipient.

Held:

Majority opinion by Justice Roberts

  • Contributing money to a candidate was an exercise of an individual’s right to participate in the electoral process through both political expression and political association. A restriction on how many candidates and committees an individual may support was hardly a modest restraint on those rights. The Government could no more restrict the number of candidates that a donor supported.
  • The aggregate limits prohibited an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fell withinthe base limits The limits denied an individual all ability to exercise his expressive and associational rights by contributing to someone who would advocate for his policy preferences.
  • In assessing the First amendment interests, proper focus was placed on an individual’s right to engage in political speech and not collective conception of public good. The whole point of the First Amendment was to protect individual speech that majority would prefer to restrict, or that legislators or judges would not view as useful in the democratic process.
  • The aggregate limits did little to address the concern raised by the Government that it prevented circumvention of the base limits as they seriously restricted participation in the democratic process.
  • The Government did not give any reason to believe that candidates would dramatically shift their priorities if the aggregate limits were lifted. Absent such a showing, the court could not conclude that the aggregate limits were appropriately tailored to guard against any contributions that would implicate the Government’s anti-circumvention interest.
  • Disclosure of contributions reduced the potential for abuse of the campaign finance system. Disclosure requirements, which were justified by a governmental interest in providing theelectorate with information about the sources of election-related spending, would deter corruption by exposing large contributions and expenditures to the light of publicity. These requirementswould burden speech, but often was represented a less restrictive alternative to flat bans on certain types or quantities of speech. Particularly with modern technology, disclosure now offered more robust protections against corruption.
  • Recasting as corruption a donor’s widely distributed support for a political party would dramatically expand government regulation of the political process. And though the Government suggested that solicitation of large contributions posed the danger of corruption, the aggregate limits were not limited to any direct solicitation by an office holder or candidate.
  • The Government argued that the aggregate limits furthered the permissible objective of preventing quid pro quo corruption. The difficulty was that once the aggregate limits kicked in, they banned all contributions of any amount, even though Congress’s selection of a base limit indicated its belief that contributions beneath that amount did not create a cognizable risk of corruption. The Government had to thus defend the aggregate limits by demonstrating that they prevented circumvention of the base limits, a function they did not serve in any meaningful way.
  • The Government had a strong interest in combatting corruption and its appearance. This interest had to however be limited to a specific kind of corruption, quid pro quo corruption.This was to ensure that Government’s effort did not restrict the First Amendment right of citizens to choose who will govern them. Thus, the aggregate limits on contributions did not further the only governmental interest as accepted as legitimate in Buckley v.Valeo,424 U. S., at 14. They instead intruded without justification on a citizen’s ability to exercise the most fundamental First Amendment activities.

As per Justice Thomas

  • Limiting the amount of money a person would give to a candidate imposed a direct restraint on his political communication; if it did not, the aggregate limits at issue would not create a special burden on broader participation in the democratic process.
  •  Contributions and expenditures were simply two sides of the First Amendment coin and efforts to distinguish the two produced mere word games rather than cognizable principles of constitutional law. For this reason, the rule in Buckley v. Valeo, 424 U. S., at 241,244 would be overruled, subjecting the limits in the Bipartisan Campaign Reform Act, 2002 to strict scrutiny which would fail. Under traditional strict scrutiny, broad prophylactic caps on both spending and giving in the political process were unconstitutional.

Dissenting opinion of Justice Breyer with whom Justice Ginsburg, Justice Sotomayor and Justice Kagan joined

  1. The First Amendment advanced not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech mattered.
  2. The upshot is that the interests the Court described as preventing corruption or the appearance of corruption were more than ordinary factors to be weighed against the constitutional right to political speech. Rather, they were interests rooted in the First Amendment it-self. They were rooted in the constitutional effort to create a democracy responsive to the people, a government where laws reflected the very thoughts, views, ideas, and sentiments, and the expression of which the First Amendment protected.

The District Court judgment was reversed.

Relevance to Kenya.

The Constitution of Kenya under Article 36(1) provides for the freedom of association such that every person has the right and it includes right to form, join or participate in the activities of an association of any kind.

Article 38(1)(b) provides for political rights such that every citizen is free to make political choices which includes the right to participate in the activities of a political party.

This includes contributions towards campaigns to an individual, political party or referendum committee.

The Election Campaign Finance Act, 2013 governs campaign financing in Kenya.

Like the United States Federal Election Campaign Act, it regulates campaign financing by prescribing limits on contribution that one may choose to donate to a candidate, political party or referendum committee.

Section 12 provides that the commission shall through notice in the Gazette prescribe limits on: total contributions; contributions from a single source; paid-up media coverage; loan forming part of a contribution,which a candidate, political party or referendum committee may receive during the expenditure period at least twelve months before a general election.

The Act further provides that no contribution from a single source ought to exceed twenty percent of the total contributions received by that candidate, political party or referendum committee.

On disclosure, the commission is mandated to prescribe limits beyond which contributions received by a candidate, a political party or a referendum committee a single source may be disclosed.

Section 16 provides that where contributions are received from a harambee, the authorized person shall keep a record of the specific details of the harambee including the venue, date, organizer of the harambee and total contributions.

A candidate, political party and a referendum committee shall disclose the amount and source of contributions received for campaign for a nomination, an election or a referendum, as the case may be.

The Act also makes failure to disclose funds and donations as prescribed an offence.

This case can be instrumental in the implementation of the provisions under the Election Campaign Finance Act since the contribution limits are not specifically set yet.

The case can alternatively be used to assess the Constitutionality of the Act in so far as the prescription of limits is concerned.

 

 

 

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