Today’s midterm elections were the first ones to take place after the landmark Supreme Court ruling earlier this year in McCutcheon v. Federal Election Commission that struck down aggregate limits of campaign contributions from individuals to candidates and party committees.
When the dust settles and the year-end campaign disclosure reports are filed with the FEC, the public and pundits will see the extent to which individual donors took advantage of a ruling that has been vilified by critics as the end of democracy as we know it. That ruling was the result of the brave efforts of Shaun McCutcheon and chronicled in his book, “Outsider Inside The Supreme Court: A Decisive First Amendment Battle.”
This 81-page self-published book, with an Introduction by Bradley Smith, a law professor and former chairman of the FEC, is available in both paperback and as an e-book. McCutcheon presents the reader with an interesting account of his career and political background, as well as an inside look at the genesis of the litigation, with a rare behind-the-scenes account of the strategy employed by McCutcheon’s attorneys in the Supreme Court, ranging from what arguments to make to what attorney to select for the oral argument.
The Entrepreneurial Engineer Turned Political Activist
Shaun McCutcheon, a native of Alabama, grew up tinkering with machines and was given the nickname “The Wizard” by his friends for his knack for fixing them. Following in the footsteps of his father, who holds a PhD in electrical engineering, Shaun graduated from Georgia Tech in 1989, with a bachelor’s degree in electrical engineering, though he enjoyed and excelled in his political science course.
Shaun recounts his career path, choosing to work for smaller companies since they provided more flexibility and provided him more opportunities to utilize his problem-solving talents. Not afraid to work up to 110 hours a week, and imbued with an entrepreneurial spirit, he eventually founded his own small business, Coalmont Electrical Development near Birmingham, with approximately 20 employees, some of whom are now part-owners of the company.
His professional experience over 25 years taught him important lessons. As Shaun puts it, “Government agencies are a constant problem for business. They limit business. Limits are not freedom.” It was this excessive government intervention that prompted Shaun to get politically active at the local and national level, and to use his fix-it engineering skills that led to a major campaign finance Supreme Court decision.
During the Tea Party rebellion around 2009, Shaun became more active in politics starting with his work with the Greater Birmingham Young Republicans. He began to network with other activists, including Shana Teehan, communications director for the Alabama Republican Party, who recommended that he attend the Conservative Political Action Conference (CPAC) in Washington, D.C. in 2011.
It was during CPAC that he met Dan Backer, the Washington, D.C. lawyer who would be the architect of the landmark ruling that bears Shaun’s name. Full disclosure: I have known Dan for a number of years and have worked closely with him on FEC matters and cases, including filing a friend of the court brief in the Supreme Court supporting Shaun’s case. That is why the second part of the book discussing the litigation strategy and the players involved in the case is more appealing to this reviewer and presumably the broader legal and political community.
The Supreme Court Strategy
The premise of the litigation was quite simple. Under the campaign law, individuals were limited not only in the amounts they were able to contribute to individual candidates for federal office, namely $2,600 per primary and general election, and $5,000 to non-candidate PACs, but also limited in the aggregate amount a person could give to all candidates, $48,000, and $74,600 to all PACs, and political parties.
Under the rules, Shaun was free to give the maximum amount of $5,200 up to nine candidates, but could not contribute that amount to a tenth candidate. So where does the government get the right to abridge his First Amendment rights to engage in this additional political activity?
The seminal case of Buckley v. Valeo in 1976 upheld the individual limits to candidates to prevent corruption or the appearance of corruption or quid pro quo that would be associated with unlimited contributions, and only in passing upheld the overall aggregate limits that one person can contribute to all candidates and party committees.
The Buckley Court had also struck down limits on what are called “independent expenditures” under the First Amendment where a person or committee engages in political advertising without coordinating with the candidate. That part of the ruling served as the basis for the Court’s 2010 controversial ruling in Citizens United v. FEC where the Court ruled in a 5-4 decision that corporations and labor unions also have the First Amendment right to make independent expenditures.
Shaun’s argument was that if his limited contributions to nine candidates did not create a corrupting influence, how could he possibly corrupt the tenth candidate with the same limited amount of money? Shaun then recounts how Reince Priebus, Chair of the RNC, realizing the importance of the case for party committees to raise additional money, sought to join forces with him and have their attorney, James Bopp, an election law expert, add some legal firepower to the cause.
Unfortunately, the initial litigation before a special three-judge court resulted in an adverse ruling with spurious reasoning by the court that party committees could be the recipient of million-dollar donations that could circumvent individual contribution limits.
That ruling caused Shaun and his lawyers to re-tool their argument before the Supreme Court. They decided that the focus of the litigation should be on Shaun’s desired contributions to individual candidates and to downplay the party committee scenario implications.
As a result, after much back and forth discussions with the RNC, a decision was made to have the RNC file a separate brief and that Shaun’s team would engage another attorney for the oral argument. Seasoned Supreme Court advocate, Paul Clement, former Solicitor General under George W. Bush, was their first choice; however, due to his unavailability, they retained his colleague, Erin Murphy, a former law clerk to Chief Justice John Roberts, but who had never argued before the High Court.
After the briefs were filed, including many amicus briefs from both sides of the policy spectrum, with one by Senator Mitch McConnell, the day for the oral argument finally arrived. Before a packed courtroom, Erin Murphy presented her argument followed by Senator McConnell’s attorney, Bobby Burchfield, who was allowed ten minutes of argument time. The RNC did not get any argument time. Representing the Obama Justice Department was the Solicitor General, Donald Verrilli.
The questioning from the justices was fast and furious. Justice Breyer led the attack for the liberal justices, raising unrealistic scenarios of massive contributions to party committees finding their way to candidates to get around the individual contribution limits. Justices Alito and Scalia pointed out how such scenarios were illegal under the current rules prohibiting earmarked contributions.
That didn’t stop Solicitor General Verrilli from making even a more outlandish hypothetical that if the aggregate limits were struck down under the First Amendment, that reasoning would allow someone to give the Secretary of Defense a Maserati for doing his job. Justice Alito quickly brought Verrilli back to earth, reminding him that such a “wild hypothetical” would be illegal since federal law prohibits such gifts to government officials.
The litigation strategy paid off. On April 2, 2014, the Court issued its long-awaited 5-4 opinion authored by Chief Justice Roberts that the aggregate limits are an infringement on Shaun’s First Amendment’s right of free speech and that the governmental interest in the political financing area can only be the prevention of a “quid pro quo.” No such corruption could be found by allowing citizens to give as much as they want overall to as many candidates as they want, so long as the amount given to each candidate does not exceed the individual limit.
A Final Warning
McCutcheon ends his book with a warning that readers should take heed, presumably for the upcoming 2016 Presidential election: In light of the 5-4 ruling in his case (and Citizens United) “all lovers of freedom should also beware of the dangerous possibility that small changes in the Court’s members or views could undermine our constitutional values.”
Paul Kamenar is a Washington, D.C. public policy lawyer and appellate practitioner. He’s a Senior Fellow of the Administrative Conference of the United States and guest lectures at the U.S. Naval Academy on National Security and Constitutional Law. He is also a contributor to SFPPR News & Analysis.