Let money talk: the Supreme Court should abandon the dubious distinction between campaign spending and campaign contributions.

• Author: Sullum, Jacob
• Position: Columns - Column

IF CONGRESS tried to limit spending by newspapers, the courts would reject such meddling as a blatant violation of the First Amendment. Likewise if Congress tried to accomplish its goal indirectly by limiting the amount of money newspapers receive from advertisers.

Yet the same sort of distinction supposedly justifies federal limits on campaign contributions, the subject of a case the Supreme Court heard in October. McCutcheon v. FEC gives the Court an opportunity to reconsider an illogical constitutional line it drew nearly four decades ago.

Shaun McCutcheon, an Alabama businessman and Republican activist, argues that the overall limits on how much one person can give to candidates, parties, and political committees during an election cycle impinge on his First Amendment rights for no good reason. The current aggregate limit for donations to candidates, for example, is $48,600, which means McCutcheon can give the maximum legal contribution to no more than nine candidates.

If the risk of corruption from giving $5,200 to each of nine candidates is negligible, McCutcheon asks, why is giving the same amount to a 10th candidate intolerable? And if he has a First Amendment right to make those first nine donations, why not the 10th? It certainly seems arbitrary to say that at that point he is supporting too many candidates.

The Federal Election Commission says the aggregate limits are necessary to prevent evasion of the restrictions on individual contributions. If a donor can give the maximum contribution to an unlimited number of political committees, for example, those committees might pass the money on to a particular candidate, the upshot being that he receives more than $5,200 of the donor's money.

McCutcheon responds that such an arrangement would be illegal if it were binding on the committees (since donations funneled through an intermediary are legally the same as donations given directly to candidates) and ineffective if not. He does not take the additional step of arguing that the limits on individual donations are unconstitutional.

That task falls to the Cato Institute, which in a brief supporting McCutcheon urges the Supreme Court to abandon the dubious distinction it drew in...