McCutcheon v. Federal Election Comm'n (12-536)
argument 12-536McCutcheon v. Federal Election Comm'n
Supreme Court of the United States
58 min
7 speakers
8 chapters
transcribed 7 days ago
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What is the constitutional argument against BICRA’s aggregate contribution limits?
We'll hear argument first this morning in Case 12-536, McCutcheon v. the Federal Election Commission. Ms. Murphy.
Mr. Chief Justice, and may it please the Court, Bicker's aggregate contribution limits are an impermissible attempt to equalize the relative ability of individuals to participate in the political process. By prohibiting contributions that are within the modest base limits Congress has already imposed on combat the reality or appearance of corruption, these limits simply seek to prevent individuals from engaging in too much First Amendment activity. These limits cannot be justified on circumvention grounds because the concerns the government hypothesizes are already addressed by Bikra's multitude of more direct anti-circumvention measures.
How is that?
Because BICRA imposes numerous direct circumvention measures. For instance, we have earmarking provisions on earmarking contributions for a particular candidate. We have coordination restrictions on coordinating expenditures with a candidate. There are proliferation restrictions on creating multiple PACs that are all designed —
All these were there at the — but for one, were there at the time of Buckley v. Vallejo. And I guess the Court thought something could happen like the following — Candidate Smith. You can only give him $2,600. But he has a lot of supporters. And each of them, 40 of them, gets a brainstorm. And each of the 40 puts on the Internet a little sign that says, Sam Smith PAC. This money goes to people like Sam Smith. Great people. Now, We can give each of those $45,000. They aren't coordinated. They're not established by a single person. Each is independently run. And we know pretty well that that total of 5,000 times 40 will go to Sam Smith. Okay? What does that violate?
There's a couple of problems with that, hypothetically, Your Honor. First of all, there are base limits both on what can be given to a PAC.
$5,000. And on
what a PAC can give to a candidate.
$5,000. So all we have is my $5,000 going to the PAC,
and there
happen to be 400 PACs. So 5,000 times 4,000. 5 times 40, 5 times 400. How much is that? I am too good at math.
Without doing the math, I will tell you that earmarking and proliferation — No, no.
There is no earmarking. But there — Because earmarking requires that you write on a check or in an accompanying letter that you want the money to go to something.
But — Actually, it does not. The FEC's earmarking regulations are broader than that. If you have a PAC that is going to contribute only to one candidate, you're not — No, no,
they'll contribute to several because they'll get more than
one contribution. And at that point, then, you don't have the kind of traceability you're talking about because there's more money coming into the PAC than can find its way to any one particular candidate. I would
think if you name the PAC after a particular candidate, as the hypothetical assumes — I would be surprised if the Federal Election Commission wouldn't come after you for earmarking.
That's exactly the point. Well, let's say this one, Ms. Murphy. Let's say this one. You have 100 PACs, and each of them say that they're going to support the five candidates in the most contested Senate races. There are really only five very contested Senate races, and 100 PACs say that they're going to support those five candidates. Thank you. So a donor gives $5,000 to each of those 100 PACs, which support those candidates. The PAC divides up the money. $1,000 goes to each candidate. The total, all those PACs, $100,000 goes to each of the Senate candidates in the five most contested races, 20 times what the individual contribution limits allow.
A couple of responses to that, Your Honor. I mean, first of all, we're talking about scenarios where there isn't coordination at all between the first person who makes the contribution and the candidate later on that's receiving it.
This candidate knows all of his $100,000 donors. There are not all that many of them. He can keep them all in his head in a mental Rolodex.
But they're not actually donors to him at that point.
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Chapters
8 chapters
1
What is the constitutional argument against BICRA’s aggregate contribution limits?
0:01–6:54
2
How do the parties illustrate circumvention through hypothetical PAC structures?
6:54–14:21
3
Why do counsel and the Justices debate whether earmarking rules block the alleged schemes?
14:21–22:37
4
What impact would removing the aggregate limits have on a donor’s ability to fund multiple candidates?
22:37–31:09
5
How does the Court balance the government’s anti‑corruption interest with First Amendment rights?
31:09–37:52
6
What role do joint‑fundraising committees play in the corruption‑appearance analysis?
37:52–46:10
7
How do the Justices assess the empirical record (or lack thereof) on large‑scale contributions?
46:10–53:06
8
What are the possible alternatives to aggregate limits and why might they be insufficient?
53:06–59:03