Kathryn Ciano

The First Amendment protects assembly, speech and the resources that make speech possible. Yet the rules governing political speech in the United States are fraught with limits, red tape and restrictions so complex that the average person is deterred or unable to engage in the process.

The Supreme Court has long recognized that limits on campaign contributions infringe on First Amendment rights. This week, the court is considering whether there is a compelling government interest in limiting the size of political contributions that justifies those intrusions on the right to free speech.

On Oct. 8, the Supreme Court heard oral arguments in McCutcheon v. Federal Elections Commission. Shaun McCutcheon is an Alabama resident who wanted to make political contributions of $1,776 each to 27 Republican candidates for federal office in 2012.

Federal law caps an individual’s donations to a political candidate at $2,600, and “aggregate” total political contributions at $48,600 per cycle. McCutcheon could donate up to $2,600 to 18 candidates, but not 19—or $1,776 to 26 candidates, but not 27.

Much ink has been spilled attempting to justify this arbitrary cap. In the 1976 case Buckley v. Valeo, the Supreme Court drew a distinction between campaign contributions and campaign expenditures. Effectively, the terms hinge on whether the speech flows directly from individuals into politics, or whether it passes through a campaign. Expenditures are campaign communications, dollars spent that expressly advocate for or against a specific candidate, independent of any committee, party or the candidate himself. Contributions are the dollars individuals spend to promote an issue or campaign.

The legal difference is, in the words of Chief Justice John Roberts, that the “transformation of contributions into political debate involves speech by someone other than the contributor.”

The larger point is that both contributions and expenditures contribute to political debate. Their impact on discussion and vulnerability to corruption is the same. Neither type of speech should be restricted. Limitations on either type of spending should be reviewed under strict scrutiny, because both implicate the First Amendment. The question justices repeatedly ask about the difference is: What good is the right to speak if the government restricts the right to distribute that speech?

Kathryn Ciano

Kathryn Ciano is an associate policy analyst at the R Street Institute and an attorney in private practice in Washington, D.C.