by Jessica Ring Amunson, Partner, Jenner & Block LLP; Co-author, Amicus Brief on Behalf of Democratic Members of the House of Representatives, McCutcheon v. FEC
* Editor’s Note: Just after oral argument in McCutcheon concluded last October, Jessica Ring Amunson joined Professor Justin Levitt of Loyola Law School on a call discussing the case, which can be accessed here.
In today’s McCutcheon decision, the conservative majority of the Court took yet another step on the path toward dismantling what remains of campaign finance regulation. Although the opinion by Chief Justice Roberts claimed that it was not breaking any new ground in holding aggregate limits unconstitutional under the First Amendment, in reality the opinion redefined the campaign finance landscape. By holding that the only legitimate rationale for any campaign finance regulation can be to prevent “the direct exchange of an official act for money,” the conservative majority laid the groundwork for not only the invalidation of the aggregate limits, but also for calling into question the validity of any campaign finance limits at all.
While the Chief Justice’s opinion purported to be faithfully following and applying past precedent, the dissent by Justice Breyer describes how the plurality opinion is actually breaking significant new ground. This is the first time the Court has squarely held that in enacting campaign finance regulation, “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” It is also the first time the Court has squarely held that “because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.”