Category Archives: McCutcheon v FEC

Supreme Court Merits Briefs Filed in McCutcheon v FEC

Last June, Shaun McCutcheon and the Republican National Committee filed a lawsuit to vindicate a fundamental principle: no government may impose a limit on how many candidates, political parties, or other election-related groups a person is allowed to support in any election cycle. When the Supreme Court announced it would hear the appeal in McCutcheon v. Federal Election Commission, the case was the subject of headlines and editorials from the New York Times to the Wall Street Journal. Yesterday, McCutcheon and the RNC each filed their merits briefs with the Court, setting the case up for oral argument later this year. (Find McCutcheon’s brief here; RNC’s brief here)

The lawsuit specifically challenges the federal aggregate contribution limits enacted as part of the Bipartisan Campaign Reform Act of 2002, also known as “McCain-Feingold.”  While Congress has already imposed strict limits on the amount a person may contribute to any single candidate, political party, or PAC, the aggregate limits impose an additional, overall cap that functions to prevent a person from contributing small amounts of money to “too many” candidates or groups.  McCutcheon’s brief persuasively argues that the FEC cannot justify the aggregate limits either as an anti-corruption measure or as a method of preventing circumvention of the base limits, which is already foreclosed by numerous specific provisions, for example prohibiting undisclosed earmarks and contributions in the name of another.

The aggregate limits are therefore at odds with the First Amendment. They are entirely unnecessary in light of the base contribution limits and maze of additional federal regulations, yet seriously infringe the associational rights of Americans to support as many candidates and political committees as they wish without government interference.

McCutcheon is represented by Jerad Najvar of Houston-based Najvar Law Firm, DB Capitol Strategies in Washington, DC, and Michael Morley, election law and appellate litigator. The RNC is represented by the Bopp Law Firm and Stephen M. Hoersting.

Supreme Court Will Hear Appeal Challenging Aggregate Limits

Tuesday morning, the Supreme Court “noted probable jurisdiction” in McCutcheon v. FEC. In other words, the Court will hear the case in its next Term, beginning in October. [I am serving as Of Counsel to McCutcheon, along with Stephen Hoersting and Dan Backer; Bopp Law Firm is lead counsel.] The announcement has of course garnered significant national attention; Election Law Blog has a compilation of some coverage here.

And the Wall Street Journal just released an editorial ($) presumably to run in tomorrow’s print edition.

See this link for 20121026 McCutcheon Plaintiffs jurisdictional statement

McCutcheon v FEC: Tuesday We Should Know Whether SCOTUS Grants Review

According to Lyle Denniston at SCOTUSblog here. The Court was scheduled to vote on whether to accept McCutcheon and another major campaign finance case, Danielczyk, today. McCutcheon is a challenge to federal aggregate contribution limits on a rare direct appeal from a three-judge district court. Danielczyk is a challenge to the ban on corporate direct contributions to candidates. I believe the Court will grant argument and briefing in McCutcheon, because the district court opinion is badly flawed and contrary to the Supreme Court’s rulings with respect to cognizable “corruption.” If the Court doesn’t take this case, the disposition will have precedential value because it’s on direct appeal, not a petition for cert, which is entirely discretionary. [Disclosure: I am part of the legal team serving as Of Counsel to plaintiff McCutcheon]

Prof. Rick Hasen predicts the Court will take McCutcheon but not Danielczyk. I’m not so sure they will refuse Danielczyk (and neither is he, as he states).

McCutcheon v FEC to be Considered by Supreme Court 2/15/13

On Feb. 15, the US Supreme Court will consider whether to accept for review McCutcheon and RNC v. FEC, No. 12-536, a challenge to federal limits on aggregate political contributions. The appellants’ jurisdictional statement was filed 10/26.  Bloomberg BNA coverage here ($). (HT Rick Hasen’s Election Law Blog for covering.) Here is the Supreme Court docket entry.

Disclosure: I (along with Dan Backer and Stephen M. Hoersting) am Of Counsel to Shaun McCutcheon, the individual donor plaintiff/appellant. More coverage and a summary to come soon.