Blog — Supreme Court

October 07, 2013

McCutcheon: More Money, More Problems

By CREW Staff

McCutcheon Fat CatHere at CREW, we’ve focused a great deal of our work on independent political spending — super PACs and tax-exempt non-profits raising cash in unlimited sums to influence the outcomes of elections.

Just as important are contributions that go directly to candidates and party committees.  These contributions are subject to strict limits: $5,200 per election cycle for contributions to a candidate, $32,400 per year for contributions to a national party committee, and $10,000 per year for contributions to a district or local party committee. In addition, the law imposes an aggregate limit on all donations an individual may make in one election cycle, which for the 2014 election sits at $48,600 for contributions to candidates and $74,600 for contributions to party committees.

These aggregate limits are at risk as the Supreme Court prepares to hear oral arguments on Tuesday in McCutcheon v. Federal Election Commission, and the consequences for our campaign finance landscape could be just as disastrous as those that followed the court’s infamous Citizens United decision. The plaintiffs in the case, activist Shaun McCutcheon and the Republican National Committee (RNC), argue aggregate limits infringe on the First Amendment rights of donors.

McCutcheon and the RNC aren’t challenging the base limits on individual contributions, although a lawyer for Senate Minority Leader Mitch McConnell (R-KY) has been granted time to argue these too are unconstitutional. But even a decision striking only the aggregate limits could severely undermine the base limits as well, as several campaign finance experts have explained.

At a Newsmakers event at the National Press Club on October 1, Trevor Potter of the Campaign Legal Center (CLC) and Fred Wertheimer of Democracy 21 explained how campaigns already make use of joint fundraising committees to solicit the largest possible donations allowed under the law.  Last year, both the Obama and Romney campaigns established joint fundraising committees to solicit donations of up $70,800 per donor.

The only thing that stopped the campaigns from soliciting larger donations was the aggregate limit. Absent that restriction, Messrs. Potter and Wertheimer noted, candidates could link their campaign committees to other party committees to get around the base contribution limits.  They have calculated presidential candidates would be able to solicit donations of nearly $1.2 million, while other federal candidates would be able to solicit more than $2.4 million from a single donor.  

Keep in mind, even under the existing limits, the quest for campaign cash already dictates official Washington’s behavior to an absurd degree.  A PowerPoint presentation prepared for freshman members of Congress by the Democratic Congressional Campaign Committee, which was obtained earlier this year by the Huffington Post, recommends members spend four hours a day on “call time” with donors, more than any other single activity.

Allowing members of Congress to solicit six-figure donations would be unlikely to reorient their priorities away from fundraising. At a September 26 event sponsored by the Constitutional Accountability Center, Harvard Professor Lawrence Lessig discussed research cited in a Montana case that attempted to reverse Citizens United, which found contribution limits change the “business model” of campaign fundraising.  “If you eliminate the cap on aggregate contributions, the number of funders in the system will fall even more than it has so far,” Professor Lessig explained.

A shrinking number of donors contributing ever-larger sums of money to fund elections will corrupt government — in more ways than one.  CLC argues allowing federal officeholders to solicit six-figure contributions will give rise to direct, quid pro quo corruption.  As CLC noted, in upholding the McCain-Feingold ban on unlimited “soft money” contributions to the parties, the Supreme Court concluded large contributions directly affected the government’s actions.

Beyond this more direct form of corruption, McCutcheon could reinforce what Professor Lessig termed “dependence corruption” — the government’s reliance on a wealthy and unrepresentative minority of individuals who fund campaigns.  Professor Lessig’s research reveals the framers were deeply worried about this type of corruption. Recent analyses by Public Campaign and the Sunlight Foundation detail just how a small number of wealthy donors already dominate political giving.

CREW has joined CLC’s amicus brief urging the Supreme Court to uphold the aggregate limits. We hope the Court rejects this attempt to further concentrate political power in the hands of a wealthy few.

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