Evaluating the Stakes in McCutcheon

September 20, 2013
posted by Bob Bauer

As the McCutcheon case nears argument, there is more discussion of the consequences if the Court strikes down the individual aggregate contribution limits. The court could certainly take the occasion to alter the basic Buckley framework and tighten the scrutiny applied to contribution limits. But another line of argument holds that the consequences would be sufficiently drastic if the limits fell but the fundamental constitutional law of the land did not change. On this view, the aggregate contribution limit would invite massive spending for the benefit of candidates that would heighten the risk of corruption.

This second claim typically comes in two parts.

The first posits that wealthy contributors could spread unlimited amounts of money around the party system, complying with the contribution limit applicable to each party committee, but buying much more influence on the whole. While no one contribution would exceed a contribution limit, the contributor would buy illicit influence via the party’s or the party leadership’s gratitude for the generosity of the contributor.

The second takes the view that the limits open up the possibility of circumventing the controls on the corruption of particular candidates. On the OpenSecrets Blog, Bob Biersack presents one such possibility, suggesting that

One of the first things that would surely happen without overall limits would be a wave of newly created PACs focused on specific candidate’s campaigns, which would allow donors to give $5,000 to any number of committees that would then give the money directly to the candidates.

This prediction serves to show how difficult it is to judge the significance of the aggregate limits in the age of super PACs, after the SpeechNow and Citizens United decisions. Consider the donor who wishes to help a candidate with contributions to a candidate-specific committee that makes contributions to a candidate. By choosing this route, the donor invites legal issues: the law provides that any contribution made to a committee on the understanding, express or implied, that the committee will, in turn, give to a specific candidate, will be treated as “earmarked.” 11 C.F.R. 110.6. The earmarked contribution will count against the individual contributor’s limits and if she has already given to the candidate, directly or through some other candidate-specific committee, she will be over the limit. The earmarking risk varies with a number of factors, including how candidate-specific the receiving committee may be, but there is risk.

This same donor would have no cause for worry if he or she made the contribution to a candidate-specific independent committee engaged only in making independent expenditures: the earmarking rules don’t apply. And, to the contributor’s further advantage, there is no limit on how much the contributor could give to the independent committee. So the donor has a choice between unlimited contributions to the independent committee with no exposure at all under the earmarking rules, and a limited contribution subject to some legal risk to the candidate-specific committee.

It might be objected that a donor could well prefer the direct association with the candidate achieved through a contribution to the leadership PAC or a fund under the candidate’s control or within the range of his lawful influence. Certainly: but the McCutcheon question is about the risk of corruption or its appearance, and on this specific issue, the criticism of SpeechNow and Citizens United has been that the candidate-specific super PACs they have spawned are well-positioned to function corruptly. Whether the problem is slackness of the anti-coordination rules, giving candidates effective or surreptitious influence over the “independent” committees, or simply the very real possibility that a candidate cannot fail to incur a debt of gratitude to the super PAC’s efforts on his behalf, a major complaint has been that for all practical purposes, the Court has obliterated the effective difference between a contribution and an independent expenditure.

If there is little difference remaining between the two—and that is partly what the fighting is all about—then the effects of an end to the aggregate contribution limit would be limited. The larger issue is whether, in deciding the case, the Court more frontally challenges the Buckley contribution/expenditure jurisprudence.

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