Norm Ornstein predicts trouble if the Court in McCutcheon strikes down the aggregate contribution limits—the trouble of increased corruption. If You Think Citizens United Was Bad, Wait for This Supreme Court Case, The Atlantic (September 26, 2013). Brad Smith disagrees and argues that experience shows there is nothing to fear. The Next Battle in the Fight for Free Speech, Wall Street Journal (September 29, 2013). Two knowledgeable analysts come to these very different conclusions; the reason, it appears, is that they are not using the same doctrinal yardstick for measuring the potential for corruption.

Ornstein is arguing that without an aggregate limit, donors can make a show of their wealth by spreading it widely across the available candidates and party committees. Remaining within a limit for any specific contribution, they can utilize joint fundraising committees or just grind it out contribution-by-contribution to make millions in contributions and earn the gratitude of parties, candidates and their elected representatives. “The candidates and officeholders … would open their office doors happily to them when they wanted or needed something from the government.”

Smith reads the danger differently, through the lens of the conception of “circumvention.” The key issue is still the limit that applies to each particular contribution to a party committee or candidate. Congress can act to stop the circumvention of these specific limits which occurs when the donor, having made the maximum contribution to candidate A, moves more money to her by contributing to candidate (or party committee) B with instructions to give the funds to A. This is an “earmarked” contribution, a pass-through; but Smith denies that there is a history of this problem to support the concern. And he doubts that it matters whether the donor specifically “earmarked” or not, because he judges it unlikely, and undemonstrated, that the multiple committees that first get the contributions will all act as “conduits” and channel them to the intended candidate. “There is no evidence, before or since imposition of the aggregate limit, that donors have used such schemes to circumvent the $2,600 candidate limit.”

It was this potential for “circumvention” as Smith presents it that prompted the Court in Buckley v. Valeo to uphold the aggregate limit when it was first before it in 1976. It referred to Congress’s interest in preventing “evasion” of the specific (then $1,000) per-election limit to candidates. Buckley v. Valeo, 424 U.S. 1, 38 (1976). In a curious aside, the Court made a point of saying that the constitutional question “has not been addressed at length by the parties.” Id. Now, in McCutcheon, it has been.

So while Smith is focused on the circumvention of contribution limits as a means of influencing specific candidates, Ornstein points more to the way that establishing a large financial presence in politics can translate into outsized influence. Ornstein’s view rests on a view of corruption that is less tied to specific or subtle understandings and more geared to the way the political world is seen to work. The donor who gives millions in the aggregate has no need to “earmark” to achieve influence with her money. She is not trying to get around any limit; she is making her mark with wealth that is spent candidate by candidate, party committee by party committee, entirely within legal limits. But the breadth of support she provides to the party and its candidates gives her the clout to open doors or have her calls answered.

Smith’s argument may draw the objection that because earmarking arrangements are hard to track, Congress can reasonably anticipate them and act to limit their occurrence. And the Buckley Court’s previous blessing of the aggregate limit—which it referred to as a “quite modest restraint upon protected political activity”—is authority for that position. Buckley at 38. (A different set of issues is presented by Congress’s choice in 2002 to enforce sub-limits—allocating a portion of the aggregate limit to parties and other committees, and another amount to candidates—and this could fall in McCutcheon even if the overall limit of $123,200 is affirmed).

The risk run by Ornstein’s argument is that it focuses on a form of corruption more sweeping in conception than the quid pro quo corruption that the Court has given Congress constitutional latitude to address. Justice Kennedy declared in Citizens United that “Reliance on a ‘generic favoritism or influence theory … is at odds with First Amendment analyses because it is unbounded and susceptible to no limiting principle.” Citizens United v. Federal Election Commission, 558 U.S. 310, 359 (2010). And, to the same effect: “Ingratiation and access, in any event, are not corruption.” Id. at 360. The Ornstein theory bypasses the earmarking question Smith addresses but it does so at the risk of embracing a theory of “generic favoritism or influence” purchased, so to speak, in the aggregate. It may have gotten to this place by so much of an emphasis on the total amount spent on contributions, as opposed to the specific contributions made and specific limits circumvented, that it elides the boundary between contributions and expenditures.

Considering these contrasting views explains the intense interest in how the Court decides this case, which may well prove more significant in the long run than whether the limit before it stands or falls. The arguments the Justices have read or will hear may compel the Court to address the question of whether this is a straight-up case about circumvention—a case about contribution limits and their enforcement—or a major test of theories of corruption and of the distinction between contributions and expenditures.

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