Campaign Finance, Federalism, and the Case of the Long-Armed Donor

Abstract

In its ruling last Term in McCutcheon v. FEC, the Court struck down federal campaign-finance laws that limited the aggregate amount of money that Shaun McCutcheon and other would-be campaign donors could give to a variety of political committees and to individuals running for Congress in states and districts other than their own. Chief Justice Roberts began his opinion for the plurality by declaring that "[t]here is no right more basic in our democracy than the right to participate in electing our political leaders." Retired justice John Paul Stevens has argued that the Court's ruling in McCutcheon is "a grossly incorrect decision" because (among other things) the case was about "picking other people's congressmen, not your own." In this essay for the University of Chicago Law Review Dialogue, I argue two things. First, I contend that Stevens's criticism of McCutcheon's opening line is at odds with the understanding of American federalism that Stevens championed while on the Court and is far more compatible with a conception of federalism that he explicitly rejected. Second, even looking at matters through the federalism lens that Stevens now endorses, such that one regards McCutcheon as trying to influence the selection of other people's representatives, I argue that any effort to restrict McCutcheon's and other long-armed donors' campaign spending on those grounds would face an uphill First Amendment climb.

Keywords: McCutcheon, campaign finance, citizens united, long-armed donors, federalism, Stevens

JEL Classification: K10, K19, K30, K39, K40