In Buckley v. Valeo,1 the Supreme Court subjected limits on political contributions to a lower level of constitutional scrutiny than limits on political expenditures.2 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 Last Term, in McCutcheon v. FEC,4 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 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 McCutcheon also wanted to contribute “enough money to [three national party committees] to bring his total contributions up to $25,000 each.”7 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 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 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
A unanimous three-judge panel of the district court granted the FEC’s motion to dismiss. Judge Brown11 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 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 The court therefore concluded that the aggregate limits were justified as an anticircumvention measure, preventing evasion of the concededly constitutional base limits.14 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
The Supreme Court reversed, with Chief Justice Roberts writing a plurality opinion16 and Justice Thomas concurring in the judgment. Because Buckley upheld aggregate limits in 1976,17 the plurality sought to justify its reconsideration of that holding.18 Most importantly, the plurality took issue with Buckley’s characterization of aggregate limits as a “quite modest restraint upon protected political activity.”19 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 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 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
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 defined as a “direct exchange of an official act for money.”24 While Chief Justice Roberts said that this definition of corruption “has firm roots in Buckley itself,”25 he also drew support from Citizens United v. FEC,26 citing that case for the proposition that “[i]ngratiation and access . . . are not corruption.”27 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
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 It concluded that the aggregate limits failed either way because of the “substantial mismatch” between means and ends.30 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
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 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 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 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 He criticized, as he had before,36 Buckley’s distinction between contributions and expenditures.37 Justice Thomas scolded the plurality for “purporting not to overrule Buckley, [while] continu[ing] to chip away at its footings.”38 More specifically, he said that, in order to explain why aggregate limits create “a special burden on broader participation,”39 the plurality had to assume that all contribution limits — just like expenditure limits — impose “a direct restraint on [donors’] political communication.”40 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
Justice Breyer’s dissent42 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 Corruption, according to Justice Breyer, involves the breakdown of “the constitutionally necessary ‘chain of communication’ between the people and their representatives.”44 The plurality’s narrower definition of corruption, Justice Breyer argued, is “flatly inconsistent” with McConnell v. FEC,45 which referred to the risk of “undue influence” — a subtler perversion of an official’s decisionmaking process.46 Justice Breyer then offered several circumvention scenarios that the aggregate limits could effectively prevent.47 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
The immediate commentary on McCutcheon has focused on how the Court narrowly defined the government’s permissible objective: fighting quid pro quo corruption.49 But understanding the other side of the coin — the First Amendment burden the Court perceived — may provide further insight.50 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 — 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 For instance, the Supreme Court has invalidated the offer of a state tax benefit to veterans who sign a loyalty oath53 and the offer of federal funding to noncommercial broadcasters who refrain from editorializing.54 The Court’s application of this doctrine has been criticized as inconsistent.55 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 But the doctrine has allowed for the recognition and remediation of forced choices that were not always thought to be constitutionally cognizable,57 and it “serves to alert courts” to these “constitutionally troublesome burdens.”58
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 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 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 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
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 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 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
Reading McCutcheon as an unconstitutional conditions case challenges Justice Thomas’s conclusion that the plurality undermined Buckley66 — 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 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 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 But the plurality squarely focused on the number of candidates a donor may support, not the amounts he may give to each candidate.70 Perhaps recognizing that most donors would contribute the base-limit maximum to at least some of their favored candidates,71 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
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 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
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 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 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 Then, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,78 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 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 The Court’s understanding of First Amendment burdens in Davis and Bennett — focusing on incentives and pressures, not direct sanctions81 — evoked the unconstitutional conditions doctrine.82
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 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: 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 This “conceptual inclusiveness”86 in defining problematic burdens can also be seen in Burwell v. Hobby Lobby Stores, Inc.,87 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 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.