Thanks to cases like McCutcheon and New York Progress and Protection PAC, time may be running short for New York’s $150,000 annual aggregate limit on contributions in connection with the nomination or election of candidates, certainly as applied to SuperPACs and perhaps altogether. This $150,000 limit caps political contributions (but not independent expenditures) by “persons”, including individuals and, as interpreted by the State Board of Elections, limited liability companies (LLCs). The annual aggregate limit for corporations is much lower, $5,000, a disparity that might be seen as offensive to Citizens United’s elevation of corporate political speech.
So if these aggregate caps are held unconstitutional, the sky is the limit for individuals, LLCs and corporations to spread contributions around New York. Or is it?
It turns out that the answer isn’t all that clear in the case of corporations. New York’s $5,000 aggregate limit for corporations is structured as an exception to what otherwise is a total ban on corporate contributions. On its face, striking down the aggregate limit would appear to resurrect that total ban. While a total ban would certainly be more extreme discrimination against corporate speech than the current $5,000 limit, this result is also precisely analogous to the current federal ban on corporate contributions.
This then brings us full circle back to an issue left unaddressed by Citizens United. Is a total ban on corporate contributions – whether the current federal ban or New York’s currently dormant ban — vulnerable to a Citizens United-based alleging unconstitutional discrimination against corporate speech? Will this question be the next domino in play after McCutcheon is decided?