Public Citizen attempts to make the case that the Supreme Court’s pending decision in McCutcheon could, if wrongly decided, unleash a flood of money with the probable effect of corrupting the political process. The argument is the one heard before in briefs and in oral argument about joint fundraising committees. A donor who gives to a joint fundraising committee can write a check for millions, to be apportioned within the limits among all the joint fundraising participants. Public Citizen warns against “naïveté”: the more “practical” view it urges is that the officeholder who solicits for the joint fundraising committee risks corruptive indebtedness to the donor.

This is a plausible policy argument, but not clearly one best directed to the Supreme Court or sufficient to carry the constitutional position Public Citizen is advocating. Public Citizen is relying on a hypothetical (which is another way of saying that no record exists to suggest that it is realistic) and on a particular understanding of corruption and fundraising that does not capture the complexities of Congress’ treatment of the issue in reform measures over the years.

Three times in recent years, Congress considered the corruptive effects of large sums raised from an individual donor who is otherwise limited in giving to a specific campaign or political committee. With one exception, legislators chose to give officeholders and candidates considerable leeway to ask for substantial amounts—or without limit. In short, in judging the threat of corruption, Congress has not viewed in the same way the amounts given and the amounts raised.

In 2002, when Congress was fully aware of joint fundraising, it banned officeholder solicitations of “soft” money—money from raised from corporations or unions, or outside the federal contribution limits and reporting requirements. But Congress did not include joint fundraising within the soft money fundraising prohibition. Money raised for a joint fundraising committee is not “soft” money: the amount solicited falls within federal legal limits, including the aggregate limits. In fact, after McCain-Feingold was passed, the Federal Election Commission amended the joint fundraising regulations to clarify that the ban on soliciting soft money did not restrict the ability of officeholders to raise large sums for all the participants, combined, in a joint fundraising effort. 11 C.F.R. 102.17(c)(5).

As a result, a candidate or officeholder could continue to raise over $100,000 from an individual every two years, or roughly $250,000 from a married couple, through a joint fundraising committee. And not only did McCain-Feingold preserve officeholders’ and candidates’ ability to solicit large sums through joint fundraising, it increased the contribution limits and, therefore, the total amounts that could be solicited from individuals through a joint fundraising arrangement.

Then, in 2007, Congress deliberated on large fundraising in the form of “bundling,” in which the donor raises money in unlimited amounts from others and receives (or may expect to receive) credit for it. Congress chose to put no limit on the total amount bundled by lobbyists or other bundlers. In the Honest Leadership And Open Government Act, it simply added a disclosure requirement but limited it to lobbyist bundling and narrowly defined the reportable activity. See 2 U.S.C. § 434(i). It did not subject this bundling to an aggregate limit.

So the married couple who is solicited for a quarter of a million dollars every two years through a joint fundraising committee may be asked to supplement their largesse by bundling an additional and unlimited amount. And from a corruption perspective, the unlimited bundling might be seen as more perilous than the joint fundraising: the bundling can yield unlimited funds for the soliciting candidate, all of it deposited in her campaign account, whereas the joint fundraising involves funds distributed among different candidates and committees within dollar limits in each case.

There is little reason to conclude, then, that Congress took a consistent, clear view of the role of large dollar fundraising in fostering real or apparent corruption. Congress allowed substantial funds to be solicited through joint fundraising committees, in amounts subject to the aggregate limits but well above the amounts donors could give directly to any one campaign or party committee. And Congress extended that allowance to bundling, without any limit at all on how much the candidates could ask the bundler to produce.

At the time that the Court upheld the better part of McCain-Feingold, it relied on the record assembled by Congress and more generally deferred to “Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise.” McConnell v. F.E.C., 543 U.S. 93, 137 (2003). The Court cited approvingly the care Congress had exhibited over time in adjusting regulations to evolving threats of corruption. The argument advanced by Public Citizen would have the Court substitute its own judgment for Congress’ or project how Congress would assess the corruption achievable through joint fundraising. But on this question, Congress has drawn various lines, and the view it would take, on the specific issue before the Court, is not clear.

The joint fundraising hypotheticals don’t make up much ground in the McCutcheon debate. There is the question, noted at oral argument, of how realistically they portray the increased threat of corruption arising from the elimination of the aggregate limits. But these hypotheticals also tend to assume too much about the view properly taken—and particularly the view Congress would take—of the relationship of fundraising to corruption.

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