If McCutcheon wins his case, it is not clear that a president, leader in Congress, or any candidate can solicit the million dollar donations that opponents claim.
McCutcheon’s lawsuit challenges the law’s ban on his ability to give the money and the Republican National Committee’s right to receive it, but there is no challenge to the solicitation limits in the McCain-Feingold law.
The solicitation limits in the law (2 U.S.C. §441i) banned raising of so-called soft money. The law states that the president and members of Congress “shall not solicit, receive, direct, transfer, or spend funds in connection with an election for Federal office, including funds for any Federal election activity, unless the funds are subject to the limitations … of this Act.” While the limitation would be lifted on the ability of the individual to give up to that aggregate limit, the law would still be on the books and may well still restrict the ability of a congressman to solicit over that amount.
We believe that, in the event the Court rules for McCutcheon, the law should permit candidates to form larger joint fundraising committees and solicit larger contributions. Such contributions would still be divided among participants, and could not exceed existing contribution caps, so why make fundraising more complicated and expensive than it already is? But we recognize that, as a legal matter, it is not clear whether the law’s solicitation limits would survive the Court’s decision.
The SpeechNow.org v. FEC case created the Super PAC, which allows individuals to form and donate unlimited amounts to these groups. However, the limits on solicitations by candidates and members of Congress for Super PACs still apply under the law. It may well be the case that the solicitation limits would survive McCutcheon.