The distinction between contributions and expenditures—the first enjoying less constitutional protection than the latter—keeps its hold on campaign finance jurisprudence, for better or worse. Citizens United shows that the difference carries considerable continuing clout on major issues. It does supply courts with a familiar analytical tool that they can use to dispose, often simplistically, of complicated issues. For example, the Colorado Republican cases raise important questions about party activity, especially the relationship between candidates and their parties. By turning to the storied contribution/expenditure analysis, the Courts could dodge the hard issues and decide the case. What this analysis yielded was odd, however. Suddenly parties could spend money freely if “independently” on behalf of their candidates, while their routine support of the same candidates, in day to day contact with them, were effectively “contributions” and limited in amount.

The McCutcheon case (McCutcheon v. Fed. Election Comm’n, No. 12-536 (S. Ct. docketed Nov. 1, 2012)), testing the aggregate biennial contribution limits, is another example of a perplexing nature of the contribution/expenditure distinction. Over the two year election cycle, individuals must comply with two limits: an overall limit and underlying base limits ($123,200 overall, and within this sum, no more than $48,600 to candidates, with the balance allocated between party and non-party committees). Is the overall limit a contribution limit or an expenditure limit?

The overall two-year limit is a mechanism for enforcing the limits, to be sure. It is meant to supplement the anti-earmarking provision and make it impossible for an individual to “circumvent” the base limits of $2,600 per election to candidate, $5,000 to year to a candidate etc. Say that an individual wishes to contribute more than $2,600 to a candidate and provides additional sums to party and non-party committees with the understanding that they will move the money somehow to the benefit of the same candidate. By limiting the number of committees the individual can fund—the total amount of federal contributions she can make—the overall limit diminishes the effectiveness of the maneuver and reduces the extent of “undue influence” she can wield.

But the enforcement mechanism is not same as a contribution limit in the traditional sense. Most contributions are made specifically to someone or some entity, and the limit on contributions decreases the risk of corrupting that particular someone or entity. The overall limit might seem more like a ceiling on spending. The individual subject to this limit is unable to spend more than an amount fixed by statute for all her contributions in the aggregate. The result is an aggregate limit which smacks of a spending limit, but it is assumed to be a contribution limit because it aids enforcement of such limits (the base limits). But this logic does not hold up well. In the Buckley case, the limit on aggregate spending was argued as necessary to enforce the contribution limits. The Court of Appeals had held that “We…uphold the expenditure ceilings imposed by [citation omitted] as an essential ingredient in the regulatory scheme propounded by this comprehensive legislation, one which reduces the incentive to circumvent direct contribution limits and bans.” (Buckley v. Valeo, 519 F.2d 821, 171 U.S.App.D.C. 172 at 858-859) The Supreme Court rejected this rationale in the case of this limit. But this history illustrates the larger point that a limit’s function in enforcing contribution limits does not mean that it is, by definition, a contribution limit.

The problem is not that the distinction was mistakenly argued in the aggregate limit case. The problem is the distinction itself. Its virtue has been that it helps to decide cases; its vice has been that its success has been won by glossing over hard issues, and there is the further problem that it is not always obvious how to apply it at all.

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