McCutcheon v. FEC and Roberts v. Breyer: They're Both Right and They're Both Wrong

Author(s): 
Alan B. Morrison
Publication Date: 
October 15, 2014

ACS is pleased to distribute “McCutcheon v. FEC and Roberts v. Breyer: They’re Both Right and They’re Both Wrong,” an Issue Brief by Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law and Professorial Lecturer in Law at George Washington University Law School.

As another Supreme Court term gets underway and the nation readies for midterm elections, Morrison revisits the Supreme Court’s decision this past spring in McCutcheon v. FEC that further limited the tools available to advocates of campaign finance reform and reinvigorated the debate about the role money plays in our politics. In a new ACS Issue Brief, Morrison argues that the unnecessarily broad scope of the Court’s 1976 ruling in Buckley v. Valeo has left it with little room to uphold even the most reasonable limits on spending in campaigns, leading predictably and almost inevitably to McCutcheon

In the Issue Brief, Morrison first explores a variety of narrower grounds on which the Court could have invalidated the reforms at issue in Buckley. He then points out that the breadth of the Court’s First Amendment analysis in Buckley stands in stark contrast to other decisions within the Court’s First Amendment jurisprudence in which it carefully balances free speech values with other compelling governmental interests. Ultimately, Morrison concludes, Justice Breyer’s dissent in McCutcheon “is fundamentally right about balancing the First Amendment and other legitimate interests of society, but to get to that point, the Court needs to return to the erroneous part of Buckley from which the current decisions inevitably flow.”