Thoughts on Yesterday’s Argument in McCutcheon v. FEC

By Allen Dickerson and Bradley A. Smith

Yesterday’s argument in McCutcheon v. FEC provided a rare opportunity to watch the justices of the Supreme Court wrestle with the complex issues raised by campaign finance regulation. In particular, it gave them a chance to review and challenge the government’s case. Because that case relied upon no factual record, it necessarily involved a number of hypotheticals. Since those hypotheticals were central to the lower court’s ruling, and received substantial attention from the justices and counsel at argument, here are a few thoughts concerning their reasonableness.

  1. Justice Kagan stated that a single individual could give $3.6 million to a single party. Is that realistic?

The government’s position, echoed at argument by Justice Kagan, is that a McCutcheon victory would allow a single individual to give $3.6 million to a political party. (Both the $3.5 and $3.6 million figures were mentioned yesterday; both appear to refer to the $3.6 million asserted in the government’s brief). That’s an eye-catching number, and a good deal of the intuitive attractiveness of the government’s position stems from this claim.

But as Justice Alito noted, it’s not very realistic. It suggests that a single individual will write a check to every House and Senate candidate of a particular party (468 candidates, in both the primary and general elections), the party’s national committee, the party’s House and Senate committees, and each of the party’s 50 state committees. That’s a total of nearly 1,000 contributions.

And they’re not all likely. Not every race in the country will have a primary candidate, and some seats are not contested. Each party has states in which it is not competitive, and a savvy contributor may choose not to waste money in those states.

Moreover, who is this hypothetical contributor? Most politically-involved individuals don’t blindly support a party: there are Tea Party Republicans and Blue Dog Democrats. Why would an individual give to candidates or state parties he or she feels is betraying the cause?

Certainly, an individual could contribute a great deal of money to the candidates and committees of a single party. But the $3.6 million number, so blithely mentioned by and before the Court, is hyperbole.

2.   The government has argued that this $3.6 million, or a substantial portion of it, could be funneled to a particular candidate. Is that true?

In its brief, the government argued that aggregate limits prevent multiple PACs, party committees, and candidates from funneling money from a contributor to a particular candidate, in violation of the limits on contributions to any single candidate.

This is theoretically true, but very unlikely to happen in the real world. Here’s how it would work. Each of a party’s 468 candidates (provided, again, that the party contests every federal election) would have to receive two checks from a contributor: $2,600 for the primary election, and $2,600 for the general election. Then each of those candidates would have to voluntarily send $2,000 of each check – the maximum amount permitted by law for candidate-to-candidate transfers – to a single candidate.

In addition, the national party committees (or, more precisely, the national committee and the House or Senate campaign committee, depending on who our donor is trying to corrupt) would have to contribute $5,000 to that candidate – again, the maximum party-to-candidate contribution. Finally, and least plausible, each of the state party committees, including 49 that are by definition not the favored candidate’s home state, would have to contribute $5,000 to the candidate.

To state the problem is to demonstrate its frivolity. It is unlikely that even a relatively-small number of these 500-odd entities would voluntarily collude with the original contributor, not least because the above-outlined scheme is illegal (one cannot give a maximum contribution to a candidate, and then give money to other entities with a wink-and-a-nod agreement to pass it along to that maxed-out candidate. Congress already thought of that.) Some skepticism concerning politics is healthy, but believing in conspiracies of this magnitude is not.

3.   But can’t a party leader create a joint fundraising committee, and raise a big check from a single donor, parceling that amount out to favored candidates?

Justice Kagan raised this issue at the argument, asking if the Speaker or Majority Leader of the House of Representatives could raise $3.6 million (again that number) in one solicitation to support all members and committees of a particular party.

The answer is yes, to a degree, and with the reservations already given. Such a joint fundraiser can take in money from a donor or donors and distribute it to the candidates that are part of the joint fundraising committee. But the amount received by each candidate can’t exceed the contribution limit to that candidate. In other words, Donor Smith can give $2,600 per election to Candidate Jones. It doesn’t matter if that money comes from a joint fundraiser or a direct check. If Smith has already given a $2,000 check to Jones, he can only give him an additional $600 through the joint fundraiser. Put differently: joint fundraisers have exactly no bearing on how much can be contributed to a candidate – including the party leader, who has the same $2,600 contribution limit as everyone else.

Furthermore, it is misleading to suggest that the leader would decide which candidates get the money. How the proceeds of joint fundraising committees are distributed is determined by the donors. So, to use Justice Kagan’s example, the Speaker doesn’t get to decide who gets the money. The donor does. Just as with any other contribution.

What joint fundraising committees do allow is for party leaders to efficiently raise money at once, instead of having each candidate go to the same contributor and ask for a separate check. Given complaints in some corners about the amount of time politicians spend raising money, this might be considered a good thing.

4.   Is there a danger to democracy, or risk of corruption, from allowing a party leader to raise such large amounts of money from a single contributor by means of a joint fundraiser, even if the leader can’t keep it?

Following the argument, this appears to be the essence of the case. The Solicitor General argued that, even without the danger that a contributor would create a massive conspiracy to funnel money, “the solicitation and receipt of these very large checks is a problem.” He meant, of course, joint fundraisers.

But here we run into a problem raised by Chief Justice Roberts. If what we’re trying to prevent is a candidate asking a contributor for a large check, even if he then gives the overwhelming majority of that money away to other candidates (as he must), is the aggregate limit the best way to do that? And doesn’t it harm individuals who don’t want to give millions to party committees, PACs and other entities, but simply want to support additional candidates, directly, without all this rigmarole?

He’s right. If we want to prevent party leaders from soliciting “massive” checks, we can prohibit party leaders from soliciting massive checks. If we want to prevent candidates from controlling numerous PACs, we can pass laws preventing candidates from controlling multiple PACs (actually, we already have such laws, but no matter).

In 1976, every justice of the Supreme Court, of whatever political persuasion, agreed that contribution limits implicated First Amendment rights. Yesterday, Justice Breyer spoke for most lawyers and judges when he acknowledged that the aggregate limits are a “First Amendment negative.” Reasonable people may differ as to the dangers suggested by the justices in yesterday’s argument, but the solution should be narrowly-tailored regulation, not the sledgehammer of the present aggregate limit. And the debate shouldn’t turn on hyperbole.

Allen Dickerson is the Legal Director of the Center for Competitive Politics.  Bradley A. Smith, a former chairman of the Federal Election Commission, is founder and chairman of Center for Competitive Politics.

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