Replying to a posting here, David Gans has responded with a confident defense of the brief he co-authored on behalf of Larry Lessig in the McCutcheon case. On the question of whether the aggregate limit is a contribution or expenditure limit, he has no doubt: it is an “easy” one, he writes. But how easy is it?

The application has been uncertain from the beginning. A prime example is the limit on a candidate’s personal spending, struck down by the Buckley Court, which shows how a limit, like the aggregate limit, can straddle the contribution-expenditure line.

The Court in Buckley described the candidate spending limit as an “expenditure limit,” after the Court of Appeals had reached a different conclusion. Buckley v. Valeo, 519 F.2d 821, 854 (1975). One could say that the Supreme Court then cleared things up. Buckley v. Valeo, 424 U.S. 1, 53 (1976) (“The Court of Appeals evidently considered the personal funds expenditure … as a contribution rather than expenditure.”) But it didn’t.

For in considering this very type of expenditure (personal spending by candidates) it becomes quickly clear that the Buckley jurisprudence could not offer, and therefore could not rest on, a consistently useful, manageable distinction between contributions and expenditures. A candidate may give her own campaign unlimited contributions, which are deposited, like all other contributions, in her campaign bank accounts. Certainly this giving looks like a contribution. And even if a candidate finances activities in support of her campaign without running the money through her campaign accounts, the spending, because it is “coordinated” with the campaign, is still a contribution. And all such candidate spending is coordinated by law: candidates cannot make independent expenditures on their own behalf.

The Court in Buckley judged that Congress could not limit these contributions for this reason: the candidate could not corrupt herself, and the goal of preventing corruption was at any rate best served by having personal funds replace those of interested givers. It might be a particular type of contribution, not at all corruptive, but it is no less a contribution, because it is (a) a contribution by definition, given for the purpose of influencing a federal election and (b) not an independent expenditure, because candidates cannot spend independently of their own campaigns.

The weakness of this contribution-expenditure categorization emerges starkly from a close reading of the most recent Court decision involving this example of unlimited candidate spending from personal funds. In the Davis case, the Court struck down the elevated contribution limits provided to candidates facing self-financed, millionaire candidates spending above a certain threshold amount. Davis v. Federal Election Commission, 554 U.S. 724 (2008). The Court spoke of the “burden” on the wealthy, opposing candidate whose unrestricted spending could mean enhanced financial opportunity, under expanded limits, for his opponent. Id. at 739, 740. Was this a contribution limit or expenditure case? Is the issue that the limits are lower for the self-financed candidate or just that his right to spend freely from his own funds is diminished or “burdened”?

The Court in Davis stated, revealingly, that “even if §319(a) (establishing lower limits for the self-financed candidate) were characterized as a limit on contributions rather than expenditures,” the outcome would be the same. Id. at 740, n. 7. This suggests that the law is better read the other way around—more as a limit on expenditures than on contributions. The Court concedes that it is not a direct limit on expenditures but that it might operate as a limit, since the self-financed candidate has to choose between spending freely, and reining in her expenditures to avoid opening up special fundraising opportunities for her opponent. So Davis is a contribution limit case that is also an expenditure limit case.

Such is the issue presented by the aggregate limit—a reasonable person could argue that it is not only a contribution limit. For it restricts the total amount that a contributor can spend on contributions across the board to candidates, and to political party and other committees. Like Davis, the McCutcheon case is about both contributions and expenditures and puts on display once again the fuzziness of the distinction. As in Davis and Buckley, the Court may either fail to offer a clear classification of the spending, or will assign it to one category or the other only upon determining whether the limits serve the requisite and now narrowly defined anti-corruption purpose.

So in arguing that the aggregate limits are easily understood to be contribution limits, sustainable under existing doctrine, the Lessig brief overstates its case. And it also fails to truly argue that case, endeavoring to fill in the gap with plentiful citations to Founder Era denunciations of corruption.

And in his defense of the brief, Mr. Gans once again does not mention, just as his brief does not, that Congress has imposed two aggregate limits—one overall limit, and the other, a subsidiary limit, that restricts how much within the overall ceiling of $123,200 can be spent on candidates, parties and other political committees. If the overall limit is said to serve an anti-corruption purpose, nothing in the Lessig brief explains the government interest served by mandating the allocation of funds among political beneficiaries: limiting candidate contributions in the aggregate to $48,600 and, out of the balance, reserving $26,000 to the parties. Whatever the purpose of this directed spending, it is not incontestably one of preventing the fact or appearance of corruption, and the Lessig brief does not take on the issue.

The Lessig comprehensive critique of money in politics is powerful and has contributed much to the contemporary debate about campaign finance and lobbying law. The conversion of these views into workable doctrine seems, from the evidence of the McCutcheon brief, less successful. It will be surprising if citations to Founding Era views of “entity corruption,” such as those of Gouverneur Morris in September of 1787, will be enough to move the Court in the direction that Professor Lessig advocates in this particular case.

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