- - Thursday, April 3, 2014

The Supreme Court issued a landmark First Amendment decision this week in McCutcheon v. FEC, illustrating timeless principles that apply outside of the campaign-finance context.

Our Constitution recognizes that the individual’s rights are intrinsic. Whether one believes they spring from God, from nature or from the birth of our nation, one is born with his rights — they are not something granted us by government and revocable at its whim.

In ratifying the Constitution, we collectively vested the central government with certain enumerated powers, but retained our freedoms, and that founding document harshly limited central authority in order to protect individual liberty. The recent fad of using governmental power to viciously attack, harangue and harass those with differing views is precisely why these restraints exist.

Accordingly, when Congress seeks to limit personal freedoms, our system never asks the individual to justify his right to engage in the activity in question. Instead, the onus is always on the government to justify the constitutionality of its laws.

Shaun McCutcheon won because neither the Federal Election Commission nor the solicitor general could muster any coherent justification for limiting the aggregate political contributions of an American citizen. That is a result everyone in a free society should applaud.

The question is not, as many commentators have framed it, whether “rich” people should be allowed to make many contributions. The question is whether government has any good reason to limit such activity, or to target any individual or group to restrict their liberty.

That is the very essence of restraint, and restraint is sorely lacking at a time when political leaders such as the president and the Senate majority leader regularly lambast and declare as “un-American” those who dare to challenge their ideas.

Nor are the hysterics surrounding this case justified. Federal law imposes “base limits” on the amount an individual may give to any single candidate, party or PAC, but until now, also imposed “aggregate limits” on the total that may be given to all candidates or all parties and PACs combined. McCutcheon involved a challenge only to these latter, “aggregate” limits.

Mr. McCutcheon, a self-made Alabama businessman, worries about our country’s increasingly wayward drift and contributed $1,776 to each of 17 candidates in 2011-12 who he thought could right the ship. Then he wanted to contribute that same, symbolically important amount to 11 more candidates. Even though each contribution would have been well within the base limit (then $2,500 per candidate, per election), Mr. McCutcheon could not give these additional contributions because he would have exceeded the aggregate limit of $46,200.

The Supreme Court recognized the common-sense principle we have argued all along: The aggregate limits “have the effect of restricting how many candidates or committees the donor may support, to the extent permitted by the base limits.” With the aggregate limits in place, Mr. McCutcheon had to ration his support to a select few candidates, leaving others aside. Chief Justice John G. Roberts Jr., in the court’s controlling opinion, forcefully rejected the view that such a limit imposes merely a “modest restraint” on First Amendment activity:

“An aggregate limit on how many candidates and committees an individual may support through contributions is not a ‘modest restraint’ at all. The 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.”

The aggregate limits imposed a severe burden on political rights, a burden that was unconstitutional regardless of how few or how many contributors it affected, unless the government could explain why the aggregate limits were necessary to combat quid pro quo corruption.

In the absence of any evidence of corruption, the government relied on wholly imaginary hypotheticals that Chief Justice Roberts rightly found to be “implausible,” “illegal” under current law, or “divorced from reality.”

Yet the four dissenting justices postulated that perhaps there were no examples of bad actors circumventing the base limits because “in the real world, the methods of achieving circumvention” are so “subtle” and “complex” that they have not been detected. In essence, the dissenters would permit government to impose severe burdens on core political rights based not on any actual evidence, but rank speculation.

This analysis would not fly in any other First Amendment context, and nobody — liberal or conservative — should applaud a jurisprudence that would so cavalierly rubber-stamp a law limiting political association.

If there were any doubt, McCutcheon illustrates that limits on contributions impose severe First Amendment burdens and must be subjected to rigorous scrutiny in any court challenge. For this, the decision will be celebrated by those who embrace a society that elevates the liberty of the individual over the power of government to suppress the robust exercise of fundamental liberties.

Jerad Najvar and Dan Backer represent Shaun McCutcheon.

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