Re: D.C. Aggregate Limit Statute Likely Unconstitutional under McCutcheon
The Honorable Vincent C. Gray
Executive Office of the Mayor
1350 Pennsylvania Avenue, NW
Suite 316
Washington, D.C. 20004
Dear Mayor Gray:
With the 2014 elections rapidly approaching, we urge you to take quick action to respond to the U.S. Supreme Court’s decision in McCutcheon v. FEC,[1] in order to ensure that D.C. does not continue to violate its citizens’ First Amendment rights. In that case, plaintiff Shaun McCutcheon challenged the federal aggregate limit imposed on contributions by individuals to candidate campaigns, political parties, and political committees under the Bipartisan Campaign Reform Act of 2002. The Court ruled that the limit was unconstitutional under the First Amendment.
The District of Columbia has an essentially identical requirement in its campaign finance laws, which we believe is almost certainly unconstitutional under the McCutcheon ruling.[2] As Chief Justice Roberts noted in the opinion for the Court, “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.”[3]
Two states have already recognized the applicability of McCutcheon to their own aggregate limits. For example, on the day of the McCutcheon ruling, the Massachusetts Office of Campaign and Political Finance (OCPF) announced that it “will no longer enforce the $12,500 aggregate limit on the amount that an individual may contribute to all candidates. In regard to the $5,000 aggregate limit that an individual may contribute to party committees, OCPF is currently reviewing the ruling in more detail.”[4] Shortly thereafter, the Maryland State Board of Elections announced that “[t]he [Maryland] Attorney General has advised that based on the pronouncement in the McCutcheon decision, the aggregate contribution limit in [Maryland] Election Law Article § 13-226(b)(2) is unconstitutional and may not be enforced.”[5]
Now is the time for D.C. to proactively apply this Supreme Court decision.
To ensure compliance with the First Amendment to the United States Constitution, the District of Columbia should repeal DC Code § 1-1163.33(d) as soon as possible.
Until the law is repealed or otherwise amended in order to comply with the Court’s ruling, we urge the Attorney General and other district officials who have responsibility to enforce the district’s campaign finance laws to immediately announce that this law will no longer be enforced.
If the District of Columbia fails to either amend or repeal this statute to conform to the Court’s ruling, it risks a lawsuit. CCP has provided pro bono representation in similar situations, and would strongly consider doing so here as well. Such legal action would cost the district money defending the case, and would distract the Attorney General’s office from other important legal work. Additionally, if the district chooses to defend the law in court, it is probable that the district will have to pay substantial legal fees to successful plaintiffs.
Most importantly, by taking this action to implement the Court’s ruling, you and other officials will be upholding your Oath of Office by supporting and defending the Constitution of the United States and protecting the First Amendment rights of the constituents you represent and serve.
I have enclosed a Legal Memo by our Legal Director Allen Dickerson, which provides additional details on why we believe the District of Columbia’s statute is unconstitutional. Our staff would be pleased to assist you in your efforts to bring your campaign finance law into compliance with the Court’s ruling, or to answer any questions you may have on the ruling and its application in D.C.
Sincerely,
David Keating
President
https://www.ifs.org/wp-content/uploads/2014/04/2014-05-01_Mayor-Gray-Letter_McCutcheon_DC_District-Aggregate-Limit-Statute-Likely-Unconstitutional1.pdf
https://www.ifs.org/wp-content/uploads/2014/04/2014-05-01_Legal-Memo_McCutcheon_DC_District-Aggregate-Contribution-Limit-Statute-Is-Likely-Unconstitutional1.pdf
[1] McCutcheon v. Federal Election Comm’n, 572 U.S. __ (2014).
[2] DC Code § 1-1163.33(d).
[3] McCutcheon at 15 (Roberts, C.J. for the plurality).
[4] “OCPF’s statement on today’s Supreme Court decision, McCutcheon vs. FEC,” Massachusetts Office of Campaign and Political Finance. Retrieved on April 24, 2014. Available at: http://www.ocpf.net/releases/statement.pdf (April 2, 2014).
[5] “Contribution Limits,” Maryland State Board of Elections. Retrieved on April 24, 2014. Available at: http://elections.maryland.gov/campaign_finance/documents/aggregate_limits_04112014_final.pdf (April 11, 2014).
