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Freedom of Speech

McCutcheon v. FEC

In Buckley v. Valeo,1×1. 424 U.S. 1 (1976) (per curiam). the Supreme Court subjected limits on political contributions to a lower level of constitutional scrutiny than limits on political expenditures.2×2. Compare id. at 25 (noting that contribution limits “may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms”), with id. at 44–45 (holding that expenditure limits must “satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression”). Some believe that the Court will eventually reconsider this foundational distinction between contribution and expenditure limits, thereby threatening the per-candidate contribution limits (or “base” limits) upheld in Buckley.3×3. See Ronald Collins & David Skover, When Money Speaks 160 (2014) (“[T]he Buckley wall between contributions and expenditures . . . has been breached.”); O’Keefe v. Schmitz, No. 14-C-139, 2014 WL 1795139, at *12 (E.D. Wis. May 6, 2014); Michael C. Dorf, Just Shy of Bribery, Justia (Apr. 7, 2014), http://verdict.justia.com/2014/04/07/just-shy-bribery [http://perma.cc/8E7W-YGJE]. Last Term, in McCutcheon v. FEC,4×4. 134 S. Ct. 1434 (2014). the Supreme Court held that Congress may not limit the aggregate amounts that donors can contribute to candidates and political committees during an election cycle. In his separate concurrence, Justice Thomas argued that Chief Justice Roberts’s plurality opinion framed the First Amendment burden imposed by the aggregate limits in a way that undermines Buckley’s characterization of contributions as less expressive and therefore less worthy of protection than expenditures.5×5. See id. at 1464 (Thomas, J., concurring in the judgment). However, understanding the plurality opinion in light of the unconstitutional conditions doctrine — shades of which can be seen in much of the Roberts Court’s jurisprudence — provides an alternative reading of the plurality opinion that is reconcilable with Buckley’s key distinction.

In the 2011–2012 election cycle, Shaun McCutcheon had contributed $1776 to each of fifteen candidates for federal office and wanted to contribute to twelve additional candidates.6×6. See Brief for Appellant Shaun McCutcheon at 11–12, McCutcheon, 134 S. Ct. 1434 (No. 12-536), 2013 WL 1927677, at *11–12. McCutcheon also wanted to contribute “enough money to [three national party committees] to bring his total contributions up to $25,000 each.”7×7. McCutcheon v. FEC, 893 F. Supp. 2d 133, 136 (D.D.C. 2012). Each of these contributions would have been compliant with the base contribution limits restricting the amounts that individuals may give to a particular candidate, party committee, or political action committee (PAC).8×8. McCutcheon wanted to make similar contributions in the 2013–2014 election cycle. Brief for Appellant Shaun McCutcheon, supra note 6, at 12. The base limits for that cycle were $2600 per election for candidates, $32,400 per year for national party committees, $10,000 per year for state or local party committees, and $5000 per year for PACs. See Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8530, 8532 (Feb. 6, 2013). Making all of these contributions, however, would have violated the aggregate limits on how much an individual may contribute in total during an election cycle to all federal candidates and to all party and political action committees.9×9. For the 2013–2014 election cycle, the aggregate limits were $48,600 for federal candidates and $74,600 for other party and political action committees. Of that $74,600, only $48,600 could go to PACs and state or local party committees, as opposed to national party committees. See Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. at 8532. McCutcheon — joined by the Republican National Committee, which asserted a right to receive contributions of the sort McCutcheon wanted to make — brought suit in the U.S. District Court for the District of Columbia claiming that the aggregate limits were unconstitutional under the First Amendment.10×10. See McCutcheon, 893 F. Supp. 2d at 136–37.

A unanimous three-judge panel of the district court granted the FEC’s motion to dismiss. Judge Brown11×11. Judge Brown was joined by Judges Wilkins and Boasberg. assumed that the base limits “[were] valid expressions of the government’s anticorruption interest” and asserted that the court could not “ignore the ability of aggregate limits to prevent evasion of the base limits.”12×12. McCutcheon, 893 F. Supp. 2d at 140. In particular, the court envisioned a scenario in which a donor might give a massive check to a joint fundraising committee comprising numerous party committees and candidates, each of whom could then legally transfer their share of the check to a single recipient, resulting in an effective contribution far in excess of what could be donated directly.13×13. See id. The court therefore concluded that the aggregate limits were justified as an anticircumvention measure, preventing evasion of the concededly constitutional base limits.14×14. See id. The plaintiffs, as authorized by law, appealed directly to the Supreme Court, which lacked “discretion to refuse adjudication of the case on its merits.”15×15. McCutcheon, 134 S. Ct. at 1444 (plurality opinion) (citing 28 U.S.C. § 1253 (2012)).

The Supreme Court reversed, with Chief Justice Roberts writing a plurality opinion16×16. Chief Justice Roberts was joined by Justices Scalia, Kennedy, and Alito. and Justice Thomas concurring in the judgment. Because Buckley upheld aggregate limits in 1976,17×17. 424 U.S. 1, 38 (1976) (per curiam). the plurality sought to justify its reconsideration of that holding.18×18. It noted, for instance, that “statutory safeguards against circumvention have been considerably strengthened since Buckley.” McCutcheon, 134 S. Ct. at 1446 (plurality opinion). Most importantly, the plurality took issue with Buckley’s characterization of aggregate limits as a “quite modest restraint upon protected political activity.”19×19. See id. at 1448 (quoting Buckley, 424 U.S. at 38). Chief Justice Roberts reasoned that “[t]he Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”20×20. Id. The aggregate limits required a donor to “limit the number of candidates he supports, and . . . to choose which of several policy concerns he will advance — clear First Amendment harms.”21×21. Id. at 1448–49. Following Chief Justice Roberts’s example, this comment will henceforth use “candidates” to refer collectively to candidates, party committees, and PACs. To say that the donor could support more candidates if he just made smaller contributions to each candidate would “impose a special burden on broader participation in the democratic process.”22×22. Id. at 1449. The Chief Justice previewed this reasoning at oral argument, where he pressed the Solicitor General about his concern that “somebody who is very interested, say, in environmental regulation, and very interested in gun control” has “got to choose” between those two issues in order to comply with the aggregate limits. Transcript of Oral Argument at 29, McCutcheon, 134 S. Ct. 1434 (No. 12-536), http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-536_7l48.pdf [http://perma.cc/XJW6-E8UK].

With these First Amendment harms in mind, the plurality evaluated the Government’s asserted interests. The plurality emphasized that “Congress may target only a specific type of corruption — ‘quid pro quo’ corruption,”23×23. McCutcheon, 134 S. Ct. at 1450 (plurality opinion). defined as a “direct exchange of an official act for money.”24×24. Id. at 1441. While Chief Justice Roberts said that this definition of corruption “has firm roots in Buckley itself,”25×25. Id. at 1451. he also drew support from Citizens United v. FEC,26×26. 130 S. Ct. 876 (2010). citing that case for the proposition that “[i]ngratiation and access . . . are not corruption.”27×27. McCutcheon, 134 S. Ct. at 1441 (plurality opinion) (quoting Citizens United, 130 S. Ct. at 910). In fact, the plurality said that ingratiation and access “embody a central feature of democracy — that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”28×28. Id.

In assessing the fit between the government’s interest and the means it employed, the plurality refused to decide whether strict scrutiny or the less demanding “closely drawn” test was appropriate.29×29. See id. at 1445–46. The “closely drawn” test asks whether “the State demonstrate[d] a sufficiently important interest and employ[ed] means closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam). It concluded that the aggregate limits failed either way because of the “substantial mismatch” between means and ends.30×30. McCutcheon, 134 S. Ct. at 1446 (plurality opinion). After all, once a contributor reached the aggregate limits, even contributions within the base limits were prohibited — and Congress apparently did not believe that such contributions “create a cognizable risk of corruption.”31×31. Id. at 1452.

The plurality also challenged the district court’s finding that the aggregate limits prevent circumvention of the base limits, arguing that the various scenarios imagining what could happen without the aggregate limits were each “sufficiently implausible that the Government ha[d] not carried its burden of demonstrating that the aggregate limits further its anticircumvention interest.”32×32. Id. at 1453. For instance, the plurality dismissed the district court’s hypothetical about a donor giving a big check to a joint fundraising committee whose constituent members would legally transfer their base limit–compliant shares to the same individual candidate.33×33. See McCutcheon v. FEC, 893 F. Supp. 2d 133, 140 (D.D.C. 2012). The plurality said that this scenario “relies on illegal earmarking” — on a donor who would “telegraph his desire to support one candidate” and on the coordinated willingness of all the recipients to facilitate that wish.34×34. McCutcheon, 134 S. Ct. at 1455 (plurality opinion). Thus, finding the aggregate limits insufficiently related to their purported end, the plurality concluded that they violated the First Amendment.

Justice Thomas concurred in the judgment, explaining that he would subject the aggregate limits to strict scrutiny, “which they would surely fail.”35×35. Id. at 1464 (Thomas, J., concurring in the judgment). He criticized, as he had before,36×36. See, e.g., Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 412–13 (2000) (Thomas, J., dissenting). Buckley’s distinction between contributions and expenditures.37×37. See McCutcheon, 134 S. Ct. at 1462–63 (Thomas, J., concurring in the judgment). Justice Thomas scolded the plurality for “purporting not to overrule Buckley, [while] continu[ing] to chip away at its footings.”38×38. Id. at 1464. More specifically, he said that, in order to explain why aggregate limits create “a special burden on broader participation,”39×39. Id. (quoting plurality opinion). the plurality had to assume that all contribution limits — just like expenditure limits — impose “a direct restraint on [donors’] political communication.”40×40. Id. By contrast, Buckley had minimized the expressiveness of contributions, asserting that contribution limits “permit[] the symbolic expression of support” without “infring[ing] the contributor’s freedom to discuss candidates and issues.”41×41. Buckley v. Valeo, 424 U.S. 1, 21 (1976) (per curiam), quoted in McCutcheon, 134 S. Ct. at 1464 (Thomas, J., concurring in the judgment).

Justice Breyer’s dissent42×42. Justice Breyer was joined by Justices Ginsburg, Sotomayor, and Kagan. disputed the plurality’s two key premises: that corruption must be defined as quid pro quo, and that the aggregate limits do not serve the government’s interest in fighting corruption. On the first point, Justice Breyer argued that the government has a constitutionally grounded “interest in maintaining the integrity of our public governmental institutions.”43×43. McCutcheon, 134 S. Ct. at 1467 (Breyer, J., dissenting). Corruption, according to Justice Breyer, involves the breakdown of “the constitutionally necessary ‘chain of communication’ between the people and their representatives.”44×44. Id. The plurality’s narrower definition of corruption, Justice Breyer argued, is “flatly inconsistent” with McConnell v. FEC,45×45. 540 U.S. 93 (2003), overruled in part by Citizens United v. FEC, 130 S. Ct. 876 (2010). which referred to the risk of “undue influence” — a subtler perversion of an official’s decisionmaking process.46×46. McCutcheon, 134 S. Ct. at 1470 (Breyer, J., dissenting) (citing McConnell, 540 U.S. at 150 (majority opinion of Stevens, J., and O’Connor, J.)). Justice Breyer then offered several circumvention scenarios that the aggregate limits could effectively prevent.47×47. Among others, he cited the scenario envisioned by the district court: a joint fundraising committee whose members could legally transfer to a single candidate their shares of a massive contribution. See id. at 1473–74. Though he recognized that such circumvention is technically illegal, he emphasized the usefulness of aggregate limits as a prophylactic measure given the difficulty of proving that a donor, candidate, or committee knew they were circumventing the base limits.48×48. See id. at 1477–78.

The immediate commentary on McCutcheon has focused on how the Court narrowly defined the government’s permissible objective: fighting quid pro quo corruption.49×49. See, e.g., Burt Neuborne, Symposium: Welcome to Oligarchs United, SCOTUSblog (Apr. 3, 2014, 11:17 AM), http://www.scotusblog.com/2014/04/symposium-welcome-to-oligarchs-united [http://perma.cc/ZP82-RZSC]; Zephyr Teachout, What John Roberts Doesn’t Get About Corruption, Politico (Apr. 14, 2014), http://www.politico.com/magazine/story/2014/04/what-john-roberts-doesnt-get-about-corruption-105683.html [http://perma.cc/EHL7-QJXF]. But understanding the other side of the coin — the First Amendment burden the Court perceived — may provide further insight.50×50. Though the severity of the burden is not formally part of campaign finance doctrine, the Court clearly considers it relevant. See Citizens United, 130 S. Ct. at 914 (noting that although “[d]isclaimer and disclosure requirements may burden the ability to speak,” they “do not prevent anyone from speaking” (quoting McConnell, 540 U.S. at 201) (internal quotation marks omitted)). While Justice Thomas read the plurality as agreeing with him that, contra Buckley, contribution limits directly restrict political expression, the plurality’s definition of the First Amendment burden caused by the aggregate limits was less clear-cut. Viewing McCutcheon in light of the unconstitutional conditions doctrine — which is undergoing something of a renaissance in the Roberts Court51×51. See Laurence Tribe & Joshua Matz, Uncertain Justice 281 (2014) (claiming that attention to unconstitutional conditions “could emerge as a defining feature of the Roberts Court”). — helps clarify the burden the plurality perceived. Focusing on this aspect of the plurality opinion sheds light on the decision’s implications for Buckley’s continued vitality, and suggests that Justice Thomas may have prematurely declared victory.

The unconstitutional conditions doctrine “holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right.”52×52. Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989). For instance, the Supreme Court has invalidated the offer of a state tax benefit to veterans who sign a loyalty oath53×53. See Speiser v. Randall, 357 U.S. 513 (1958). and the offer of federal funding to noncommercial broadcasters who refrain from editorializing.54×54. See FCC v. League of Women Voters, 468 U.S. 364 (1984). The Court’s application of this doctrine has been criticized as inconsistent.55×55. See, e.g., Philip Hamburger, Unconstitutional Conditions: The Irrelevance of Consent, 98 Va. L. Rev. 479, 480 (2012) (noting that the doctrine is “considered a sort of Gordian knot”); Frederick Schauer, Too Hard: Unconstitutional Conditions and the Chimera of Constitutional Consistency, 72 Denv. U. L. Rev. 989, 996 (1995) (suggesting that this “doctrinal disarray” may be insoluble (quoting Sullivan, supra note 52, at 1417) (internal quotation marks omitted)). The circumstances under which the government offers conditional benefits are abundant and varied, and the circumstances under which the Court has found a violation have been unpredictable.56×56. See Adam B. Cox & Adam M. Samaha, Unconstitutional Conditions Questions Everywhere: The Implications of Exit and Sorting for Constitutional Law and Theory, 5 J. Legal Analysis 61, 69 (2013) (arguing that unconstitutional conditions problems arise whenever “the state effectively offers people a package deal with upsides and downsides involving constitutional entitlements,” which is to say that “[u]nconstitutional conditions questions are everywhere”); see also Tribe & Matz, supra note 51, at 256. But the doctrine has allowed for the recognition and remediation of forced choices that were not always thought to be constitutionally cognizable,57×57. See Mitchell N. Berman, Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions, 91 Tex. L. Rev. 1283, 1316 (2013) (“[C]ourts have frequently used or gestured to a very different conception of penalty in ‘unconstitutional conditions’ cases.”). and it “serves to alert courts” to these “constitutionally troublesome burdens.”58×58. Cass R. Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (with Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. Rev. 593, 605 (1990) (arguing nevertheless that this reminder is unnecessary).

The McCutcheon plurality opinion — read through the lens of the unconstitutional conditions doctrine — reflected this expansive understanding of potentially unconstitutional burdens. The aggregate contribution limits did not directly restrict, on pain of legal sanction, the amount a contributor could give to any particular candidate or the number of candidates he could support.59×59. See Brief for the Appellee at 20, McCutcheon, 134 S. Ct. 1434 (No. 12-536), 2013 WL 3773847, at *20. A contributor worried about the aggregate limits could always choose to give less to each recipient and still achieve “the expressive value of a contribution.”60×60. Id. But, in a key passage of his opinion, Chief Justice Roberts explained why forcing this choice imposed a serious First Amendment burden: “To require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process.”61×61. McCutcheon, 134 S. Ct. at 1449 (plurality opinion). The “special burden” lay in making the donor choose between broader and deeper participation: a donor eager to support many candidates could contribute a pittance to each, or could donate larger amounts to a select group, but could not give the base-limit maximum to all of them.62×62. See Brief for Appellant Shaun McCutcheon, supra note 6, at 28 (“Aggregate limits thus force people to choose between engaging in constitutionally protected association and expression up to the legal base limit with certain candidates and parties, and retaining the right to associate with, and express support for, other candidates and parties.”).

In view of this forced choice, the aggregate limits could be seen as pressuring donors to make smaller contributions, rather than to reduce the number of recipients. In other words, for donors wishing to contribute to many candidates, the aggregate limits could have been characterized as a de facto imposition of lower base limits. But that position would have required a direct confrontation with Buckley by implying that the current base limits may not be substantially lowered.63×63. At this time, it is clear only that per-candidate limits between $200 and $400 are too low. See Randall v. Sorrell, 548 U.S. 230, 238, 262 (2006). Instead, the plurality focused on the pressure a donor would feel to narrow the breadth, not the depth, of his contributions: in the plurality’s words, the “special burden” was on “broader participation.”64×64. McCutcheon, 134 S. Ct. at 1449 (plurality opinion). And, if the base limits may constitutionally be lowered from their current levels, a donor’s ability to contribute the maximum under the base limits looks like a government benefit that can be adjusted up or down. Then the issue in McCutcheon starts to resemble an unconstitutional conditions problem: the desire to access a discretionary benefit (larger individual donations) pressured donors to give up a constitutional right (broader participation).65×65. To be sure, this is not a classic formulation. As Professors Adam B. Cox and Adam M. Samaha note: “The possibility that the absence of regulation might be treated as a condition for the relinquishment of other interests or rights has . . . gone unnoticed.” Cox & Samaha, supra note 56, at 76.

Reading McCutcheon as an unconstitutional conditions case challenges Justice Thomas’s conclusion that the plurality undermined Buckley66×66. See McCutcheon, 134 S. Ct. at 1464 (Thomas, J., concurring in the judgment). — specifically, that case’s assumption that contribution limits do not directly restrict political expression. In his concurrence, Justice Thomas wrote: “Under the plurality’s analysis, limiting the amount of money a person may give to a candidate does impose a direct restraint on his political communication; if it did not, the aggregate limits at issue here would not create ‘a special burden on broader participation in the democratic process.’”67×67. Id. (quoting plurality opinion). Justice Thomas thus suggested that the plurality’s logic erased Buckley’s distinction between contribution and expenditure limits, for both impose serious burdens on political participation.68×68. This was a declaration of victory; Justice Thomas found the distinction between contributions and expenditures meaningless. See id. (“Contributions and expenditures are simply ‘two sides of the same First Amendment coin’ . . . .” (quoting Buckley v. Valeo, 424 U.S. 1, 241 (1976) (Burger, C.J., concurring in part and dissenting in part))). Justice Thomas seems to subscribe to the alternative reading noted above: that the aggregate limits de facto lowered the base limits, “limiting the amount of money a person may give to a candidate.”69×69. Id. But the plurality squarely focused on the number of candidates a donor may support, not the amounts he may give to each candidate.70×70. As did McCutcheon himself. See Brief for Appellant Shaun McCutcheon, supra note 6, at 20 (“Unlike base contribution limits, which limit the extent to which an individual may associate herself with a single candidate or political party committee, aggregate contribution limits preclude a person from associating with, expressing support for, or attempting to assist too many candidates, parties, or political committees.”). This focus made sense given the fact that McCutcheon did not want to donate more than the symbolically significant $1776 to each candidate. See id. at 11–12. Perhaps recognizing that most donors would contribute the base-limit maximum to at least some of their favored candidates,71×71. See Brief on the Merits for Appellant Republican National Committee at 9, McCutcheon, 134 S. Ct. 1434 (No. 12-536), 2013 WL 1923314, at *9 (“[W]hile base limits restrict how much one may contribute to particular candidates, political parties, or PACs, aggregate limits restrict how many such entities one may support at the full-base-limit amount . . . .”). the plurality identified not a de facto lowering of the base limits, but a de facto restriction on the number of candidates a donor may support.72×72. See McCutcheon, 134 S. Ct. at 1448 (plurality opinion) (“The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”).

Still, McCutcheon may yet contain the seeds of Buckley’s demise. Professor Richard Hasen suggests that McCutcheon could ultimately threaten the base limits because it allows Congress to address only quid pro quo corruption.73×73. See Richard L. Hasen, Die Another Day, Slate (Apr. 2, 2014, 1:13 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html [http://perma.cc/FFS5-MCN5]. That may be so, but McCutcheon’s understanding of First Amendment burdens likely will not contribute to a decision invalidating the base limits. The base limits do not leverage a gratuitous government benefit in order to discourage exercise of a constitutional right: there has never been a constitutional right to give unlimited sums directly to candidates. The burden imposed by the base limits requires no unconstitutional conditions-like logic to appreciate fully. The only question is whether that burden is justified by sufficiently strong government interests.74×74. Still, unconstitutional conditions reasoning may be applicable in other campaign finance cases. For instance, barring federal contractors from making campaign contributions could be understood as an unconstitutional condition: requiring the relinquishment of a constitutional right (making political contributions) in order to receive a governmental benefit (federal contracts). See Lloyd Hitoshi Mayer, Nonprofits, Speech, and Unconstitutional Conditions, 46 Conn. L. Rev. 1045, 1078–79 (2014) (discussing Wagner v. FEC, 901 F. Supp. 2d 101 (D.D.C. 2012), vacated, 717 F.3d 1007 (D.C. Cir. 2013)). Of course, raising an unconstitutional conditions issue will not lead inexorably to invalidating campaign finance regulations. See, e.g., Stop This Insanity Inc. Emp. Leadership Fund v. FEC, No. 13-5008, 2014 WL 3824225, at *4 (D.C. Cir. Aug. 5, 2014) (upholding restrictions on segregated funds — political action committees connected to a parent corporation — because the choice to form a segregated fund is “purely voluntary”).

Despite its potentially limited implications for future cases, the unconstitutional conditions reading of McCutcheon accords with earlier Roberts Court campaign finance decisions containing shades of that doctrine.75×75. The Roberts Court generally has been enthusiastic about the unconstitutional conditions doctrine and related principles. See Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2595 (2013) (conditions on land-use permits); Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2328 (2013) (conditions on federal development funding); Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012) (opinion of Roberts, C.J.) (conditions on federal Medicaid funding). The Court has made clear that free speech rights are burdened when the government uses indirect leverage or pressure — rather than explicit legal sanction — to encourage their abandonment. In Davis v. FEC,76×76. 554 U.S. 724 (2008). the Court struck down a law that relaxed contribution limits for the opponents of self-financed candidates, explaining that the provision gave only “two choices” to a candidate who wanted to exercise the right to make unlimited personal expenditures: limit his spending or face a better-funded opponent.77×77. Id. at 740. Then, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,78×78. 131 S. Ct. 2806 (2011). the Court struck down a law that granted matching public funds to opponents of privately financed candidates whose spending (and supportive independent spending) exceeded a certain amount.79×79. See id. at 2813. As in Davis, the First Amendment burden was “inherent in the choice” to either reduce constitutionally protected expenditures or cause one’s opponents to receive more funding.80×80. Id. at 2823. The Court’s understanding of First Amendment burdens in Davis and Bennett — focusing on incentives and pressures, not direct sanctions81×81. Contrast the lower court’s opinion in Davis, asserting that the law “does not limit in any way the use of a candidate’s personal wealth in his run for office.” Davis v. FEC, 501 F. Supp. 2d 22, 29 (D.D.C. 2007) (emphasis added). — evoked the unconstitutional conditions doctrine.82×82. The unconstitutional conditions aspect of campaign finance reform had been noticed even before Davis and Bennett. See, e.g., John Copeland Nagle, Voluntary Campaign Finance Reform, 85 Minn. L. Rev. 1809, 1819 (2001). It was also remarked upon after Bennett. See The Supreme Court, 2010 Term — Leading Cases, 125 Harv. L. Rev. 172, 209–11 (2011).

Situating McCutcheon — not to mention Davis and Bennett — within the unconstitutional conditions doctrine illuminates the Roberts Court’s sensitivity to the pressures and choices that result from the interaction of government benefits and burdens, broadly construed.83×83. See Tribe & Matz, supra note 51, at 281 (discussing the Roberts Court’s “new insights” on “the knotty problem of government bribery”). The Court — though not explicitly, and perhaps not consciously — seems to be “expanding the frame” in the way Professors Adam Cox and Adam Samaha envision84×84. See Cox & Samaha, supra note 56, at 69–70. : it is employing the concepts and principles of the unconstitutional conditions doctrine in cases not involving overt deals tied to discretionary welfare-state funding.85×85. See id. at 72; see also Tribe & Matz, supra note 51, at 256 (noting that plea bargains can be construed as an unconstitutional conditions issue). This “conceptual inclusiveness”86×86. Cox & Samaha, supra note 56, at 78. in defining problematic burdens can also be seen in Burwell v. Hobby Lobby Stores, Inc.,87×87. 134 S. Ct. 2751 (2014) (holding that it violates the Religious Freedom Restoration Act to require closely held for-profit corporations to cover certain forms of contraception in their employer-provided health insurance plans over their religious objections). where the majority framed the issue as whether the government could put the owners of closely held corporations “to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.”88×88. Id. at 2767; see Kent Greenfield, Hobby Lobby Symposium: Hobby Lobby, “Unconstitutional Conditions,” and Corporate Law Mistakes, SCOTUSblog (June 30, 2014, 9:07 PM), http://www.scotusblog.com/2014/06/hobby-lobby-symposium-hobby-lobby-unconstitutional-conditions-and-corporate-law-mistakes [http://perma.cc/4G3K-A4MY]. It may be that the “difficult choice” language employed in Hobby Lobby and McCutcheon is simply a rhetorical device designed to rebut those who would say that the state action at issue imposes no constitutionally (or, in Hobby Lobby, statutorily) cognizable burden. But the unconstitutional conditions reading of McCutcheon suggests that more than rhetorical posturing is at play: precisely identifying what is being burdened by what sort of pressure clarifies the doctrinal implications of the plurality opinion. Understanding McCutcheon as an unconstitutional conditions case highlights that the plurality was squarely focused on the breadth of contributions and did not speak to the constitutional status of “deep” participation.