The McCutcheon Case:The Legal and Political Consequences if the Supreme Court Strikes Down Overall Contribution Limits

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By Fred Wertheimer

In the Citizens United case, the Supreme Court by a 5 to 4 vote struck down the longstanding ban on expenditures by corporations in federal elections.

In doing so, the Court opened the door to vast amounts of unlimited contributions and secret money being spent in federal elections – some $1billion in unlimited contributions, including more than $300 million in secret contributions, according to the Center for Responsive Politics.

The Citizens United decision also included language to greatly narrow the definition of “corruption” that had prevailed for purposes of campaign finance laws since the Court’s 1976 decision in Buckley v Valeo.

The Supreme Court could soon issue its decision in McCutcheon v. FEC, a case that challenges the constitutionality of the overall limits on the total contributions an individual can give to federal candidates and parties in a two-year election cycle.

The current overall limits applicable for the 2014 election cycle are $74,600 in total contributions by an individual to all party committees and PACs, and $48,600 in total contributions by an individual to all federal candidates. The Court in Buckley upheld the constitutionality of overall contribution limits.

If the Court was to strike down the overall contributions limits, the legal and political consequences would be enormous:
  • It would be the first time that the Supreme Court reverses its landmark ruling in Buckley and the first time the Court strikes down a core federal contribution limit;
  • It would be a continuation of the Court majority’s refusal to recognize the opportunities for and dangers of government corruption caused by big money in American politics;
  • It would, as a practical matter, overturn the Court’s decision in 2003 in the McConnell case upholding the prohibition on large contributions, or soft money, to political parties;
  • It would, as a practical matter, overturn the Court’s decision in 2010 in the RNC case that reaffirmed the McConnell decision, with Chief Justice Roberts and Justice Alito voting with the 6 to 3 majority;
  • It would allow federal officeholders and candidates using joint fundraising committees to solicit and individual donors to contribute more than $1 million each to the national parties – the kind of huge contributions that the Court in Buckley said creates an inherently corrupt system; and
  • It would allow federal officeholders and candidates using joint fundraising committees to solicit and donors to give individual contributions of more than $2 million each to support federal candidates.

Legal Consequences

Limits on individual contributions, including an overall limit on the total contributions an individual could make, were enacted in 1974 in the wake of the Watergate scandals.

In 1976, the Supreme Court in Buckley v. Valeo upheld the constitutionality of the contribution limits – explicitly upholding the overall limit on total contributions from an individual.  The Court ruled that contribution limits were constitutional because large contributions create opportunities for corruption and the appearance of corruption, stating that corruption was “inherent” in a system of unlimited contributions.

If the Court strikes down the overall contribution limit in McCutcheon, they will be overturning 40 years of national policy and 38 years of judicial precedent.

Since the Buckley decision in 1976, the Court has consistently upheld the constitutionality of federal contribution limits.

In 2003, the Supreme Court in McConnell v. FEC upheld the constitutionality of the ban on large contributions to political parties, or soft money, enacted in the Bipartisan Campaign Reform Act of 2002 (BCRA).  The Court said in McConnell that “soft money” contributions to the parties were “likely to create actual or apparent indebtedness on the part of federal officeholders.”  The Court stated:

The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible.

The Court in McConnell also upheld BCRA provisions to prohibit federal officeholders and candidates from soliciting soft money, or contributions in excess of the amounts and sources permitted to be given under federal contribution limits. Justice Kennedy joined in the 7 to 2 majority vote to uphold the solicitation ban and said in a concurring opinion that the ban served an important interest in preventing “quid pro quo” corruption.

Striking the overall contribution limits would eviscerate the solicitation ban upheld in the McConnell decision.

In 2010, the Supreme Court in Republican National Committee v. Federal Election Commission by a 6 to 3 vote summarily reaffirmed the McConnell decision upholding the ban on large contributions to the political parties. Chief Justice Roberts and Justice Alito voted with the majority.

If the Supreme Court strikes down the overall contributions limits in its McCutcheon decision, it will overturn its decision in Buckley, negate its decisions in McConnell and RNC and contradict the longstanding constitutional rationales underlying these decisions. In the case of Chief Justice Roberts and Justice Alito, they would be reversing a position they took just three years ago.

Thus, a decision by the Supreme Court in the McCutcheon case to reject Court precedents over the past forty years and strike the overall contribution limits will take us further down the path to government corruption and the corruption of our democracy that began with the Court’s decision in Citizens United.

Political Consequences

If the overall contribution limits are struck down in the McCutcheon case, federal officeholders and candidates using joint fundraising committees will be able to solicit and parties will be able to receive contributions from individuals of more than $1 million each.

This would return huge corrupting contributions to the parties.

In the McConnell case, affidavit testimony was submitted to the court by former officeholders, party officials and business leaders on the need to prohibit large “soft money” contributions.  The testimony included the following comments:

Former Republican Senator Warren Rudman said, “I know first-hand and from working with colleagues just how beholden elected officials and their parties can become to those who contribute to their campaigns and to their party’s coffers….Individuals on both sides of the table recognize that larger donations effectively ‘purchase’ greater benefits for donors… ”

Former Democratic Senator Dale Bumpers said, “[The soft money] system” is crass, unholy and destructive of democracy.”People are dreaming if they think a democracy can survive when elected officials and the bills they consider are beholden to big donors.”

 Former RNC Chairman Brock testified, “[Soft money] contributions compromise our elected officials. … The reliance of the major parties on large soft money donations does not in fact strengthen the parties, it weakens them.. … Far from reinvigorating the parties, soft money has simply strengthened certain candidates and a few large donors, while distracting parties from traditional and important grassroots work.”

Former DNC party chair Don Fowler testified, “Contributions of large sums of money to parties and campaigns undermine the integrity of the political process, create inequities in the system, and produce a privileged class of political actors.”

Chairman Emeritus Gerald Greenwald of United Airlines testified, “Soft money fundraising by elected officials and party-officials and large soft money contributions by corporations corrupt the solicitors and the givers alike and certainly create an appearance among the electorate  generally that American business buys influence and legislation.”

Joint fundraising committees consist of two or more candidate and/or party committees working together to raise contributions for their mutual benefit.  Officeholders and candidates can solicit and donors can write a single check to the joint committee in an amount up to the total amount of the contribution limit for each of the participating committees.  The joint committee then distributes the funds to each of the participating committees.

Joint fundraising committees have long been used to solicit and raise single contributions in amounts that are much larger than the amount that could be given to a single candidate or single party committee.

In the 2012 presidential election, for example, President Obama and Mitt Romney each had joint fundraising committees consisting of their campaign committee, their national party committee and several state party committees. The only effective limit on contributions to joint fundraising committees is the overall contribution limit on the amount a donor can give in aggregate to all party committees and candidates.

In 2012, for instance, the limit on individual donations to the joint committees used by Obama and Romney was the overall contribution limit of $70,800, the maximum amount a single donor could give to all political party committees in the 2012 election cycle.  There were 1,257 individual donors who each gave the maximum $70,800 amount in party contributions to the Obama and Romney joint fundraising committees, according to the Center for Responsive Politics.

If the overall limits are struck down by the Court in McCutcheon, the cap on total party contributions would be gone.  Thus, in the case of a joint fundraising committee formed by a presidential candidate and consisting of all of the committees of a party, the presidential candidate could solicit and a donor could give a single contribution of as much as $1.2 million.

Using the same kind of approach, House Speaker John Boehner or Democratic Leader Nancy Pelosi could create a joint fundraising committee consisting of the candidate committees of all of their party’s House candidates.  They could then solicit checks for as much as $2.2 million per donor to support their House candidates.

Under the overall contribution limits now in effect, the maximum amount that a federal officeholder could solicit and a donor could give to a joint fundraising committee for all House candidates is $48,600.

Or, the national officeholders of a political party (for example, the current President, Senate Democratic Majority Leader and House Democratic Leader) could join forces and form a joint fundraising committee consisting of all of their party and federal candidate committees.  The officeholders could then solicit and donors could each contribute a single check for as much as $3.6 million per donor for the two-year election cycle.

Conclusion

For almost four decades, the Supreme Court in numerous cases has repeatedly held that contributions to candidates and parties provide opportunities for corruption and the appearance of corruption, and therefore limits on these contributions are constitutional and necessary to protect citizens against government corruption.

If the Supreme Court were to strike down the overall contribution limits in the McCutcheon case, we would be back to the same kind of huge corrupting contributions that resulted in the historic Watergate scandals in the 1970s and the soft money scandals in the 1990s.

Restrictions on the solicitation of huge contributions by federal officeholders and candidates would also be eviscerated if the overall contribution limits are struck down. This would reestablish the direct corrupting nexus between influence-seeking huge contributors and federal officeholders whose decisions the donors are seeking to influence.