Democracy 21 Legal Team Headed by Former Solicitor General Seth Waxman Files Supreme Court Brief Defending Contribution Limits
Representatives Chris Van Hollen and David Price submitted an amicus brief yesterday to the Supreme Court to defend the constitutionality of the limits on the aggregate amount an individual can give to all federal candidates and to all party committees in a two-year election cycle.
Representatives Van Hollen and Price are campaign finance reform leaders in Congress. Representative Van Hollen is the sponsor of the DISCLOSE 2013 Act (H.R.148). Representative Price is the sponsor, joined by Representative Van Hollen, of the Empowering Citizens Act (H.R.270).
“If the Supreme Court reverses its past position and strikes down the longstanding aggregate contribution limits, the Court will open the door wide to corruption of our federal officeholders and government decisions,” according to Democracy 21 President Fred Wertheimer. “Striking down the aggregate contribution limits would gravely damage our democracy and political system.”
The federal aggregate contribution limits challenged in McCutcheon v. Federal Election Commission have been in existence for nearly 40 years and were upheld as constitutional in the landmark Supreme Court case of Buckley v. Valeo (1976). The limits were upheld last year by a three-judge federal district court panel in the McCutcheon case. The case is now before the Supreme Court and oral argument is scheduled for October 8, 2013.
The aggregate limits cap federal donations by an individual to $74,600 in total contributions to all political party committees and $48,600 in total contributions to all federal candidates in a two-year election cycle.
According to Wertheimer:
The existing aggregate contribution limits challenged in this case prevent single donors from giving, through the use of joint fundraising committees, six and seven–figure corrupting contributions to support a political party and its federal candidates. The federal ban on federal officeholders soliciting soft money prevents a federal officeholder from soliciting huge, dangerous contributions.
If the aggregate limits are struck down, a President, House Speaker, Senate Majority leader or other federal officeholder will be able to solicit multimillion dollar contributions from individual donors, and donors will be able to buy corrupting influence over federal officeholders and government decisions with these huge contributions.
Representatives Van Hollen and Price are represented by the Democracy 21 legal team led in this case by former U.S Solicitor General Seth Waxman, a partner in WilmerHale, and Scott Nelson of the Public Citizen Litigation Group. Waxman is widely recognized as one of the leading Supreme Court advocates in the country. Other attorneys representing the amici on this brief are WilmerHale partners Randy Moss and Roger Witten, and senior associate Weili Shaw, and Fred Wertheimer, Democracy 21 President, and Don Simon, outside counsel to Democracy 21.
Excerpts from the Van Hollen-Price Amicus Brief
The brief begins by framing the issue in the case:
This case starkly poses the question whether the competition for the massive individual contributions that would be permitted without aggregate contribution limits would threaten to create the reality or appearance of corruption. This Court’s decisions leave no doubt that the answer is yes. Striking down these limits would create obvious possibilities for even the most blatant forms of corruption: solicitations for hundreds of thousands or millions of dollars, creating the opportunity for transactions exchanging contributions for anticipated political favors from officeholders. While there may be disagreement about the precise boundaries of corruption and its appearance, it has long been settled that such arrangements, at least, fall within its core.
The brief states regarding the giving and soliciting of large contributions:
Here, the aggregate contribution limits that Congress enacted serve the important interest in curtailing actual and apparent corruption. Absent those limits, extremely large contributions to party committees and affiliated candidates would directly threaten to foster the reality or appearance of corrupt arrangements resulting in officeholders beholden to their large financial backers.
In particular, elimination of aggregate limits would allow candidates and officeholders to use joint fundraising committees to solicit six- and seven-figure donations from single donors. Regardless of the use to which the contributions were ultimately put, such transactions would create the opportunity for, and the appearance of, the most blatant forms of quid quo pro corruption.
The brief argues that, absent the aggregate limits, such large contributions would foster corruption and the appearance of corruption:
Large donations to parties and affiliated candidates, moreover, benefit candidates in ways likely to foster corruption directly as well as through the circumvention of the base candidate contribution limits that are the most fundamental check on corruption. Parties and their candidates are part of a common political enterprise with shared interests. Party committees can freely transfer money among themselves and spend it in a variety of ways that directly benefit candidates. Because experience demonstrates that parties and donors find ways to target funds for particular candidates that prohibitions on “earmarking” can neither detect nor prevent, elimination of aggregate limits would enable donors to give massive donations with the expectation that they would be spent to support particular candidates. And, even when those very large donations were used to support the party more broadly, they would still have been provided in response to solicitations from the candidates and officeholders who make up the party and its leadership. Either way, such inflated donations would result in officeholders and party leaders beholden to their extraordinary financial patrons.
The important—indeed, compelling—governmental interest in preventing actual or apparent corruption provided ample basis to uphold individual and aggregate contribution limits in Buckley, 424 U.S. at 23-29, 38, the ban on corporate contributions in FEC v. Beaumont, 539 U.S. 146 (2003), and the soft money ban in McConnell v. FEC, 540 U.S. 93, 132-189 (2003), and it provides more than sufficient basis to uphold the aggregate contribution limits at issue here.
The brief explains that the Supreme Court has long viewed limits on contributions, such as the aggregate limits at issue here, as subject to a less rigorous level of scrutiny than limits on expenditures:
A foundational principle of this Court’s modern campaign finance precedent is the distinction between limits on expenditures and limits on contributions. See, e.g., Buckley v. Valeo, 424 U.S. 1, 19-22 (1976) (per curiam); McConnell v. FEC, 540 U.S. 93, 120, 137 (2003), overruled in other part by CitizensUnited v. FEC, 558 U.S. 310 (2010). Under the approach consistently applied by this Court, contribution limits are not subject to the same strict scrutiny as expenditure limits. Instead, contribution limits are constitutional so long as they are “‘closely drawn’ to serve a ‘sufficiently important interest.’” ArizonaFree Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011). As the Court explained in Buckley, unlike “a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communications.” 424 U.S. at 20-21. Accordingly, the courts have long applied a “less rigorous standard of review” to contribution limits. McConnell, 540 U.S. at 137.
The brief notes that the prevention of corruption and the appearance of corruption are compelling governmental interests that justify limits on contributions:
In every case in which this Court has considered federal contribution limits, it has upheld those limits because they serve an interest the Court has always deemed sufficiently important to justify campaign finance regulation: preventing corruption and the appearance of corruption. Very large political contributions create both the risk that officeholders and potential officeholders will be tempted to forsake their public duties and the opportunity for corrupt bargains. They thus threaten to foster both actual corruption and, what may be just as damaging, its appearance. Buckley, 424 U.S. at 26-27; accord Citizens United, 558 U.S. at 345, 356-357.
The brief explains how, absent the aggregate limits, donors could give huge contributions to federal candidates and political parties, in response to solicitations from federal officeholders:
The aggregate contribution limits at issue here are likewise constitutional because they prevent a variety of fundraising practices that raise the precise concerns this Court has previously held to justify contribution limits.
Absent aggregate contribution limits, candidates and officeholders would be permitted to solicit massive donations to their parties and fellow candidates, explicitly and directly from their donors. Candidates and officeholders are allowed to solicit any contributions that “are subject to the limitations, prohibitions, and reporting requirements of” the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. §§ 431 et seq. 2 U.S.C. § 441i(e)(1)(A). And candidates and parties often create joint fundraising committees to receive combined contributions from a single donor to be allocated, up to the applicable per-contribution limits for the relevant election cycles, to as many national, state, and local party committees and candidates as possible. Without aggregate limits, such practices would easily allow candidates and officeholders to solicit and receive contributions that substantially exceed $1 million.
· Congressional leaders could form a joint fundraising committee soliciting the maximum contributions per cycle for their two national party campaign committees ($64,800 each, for a total of $129,600), as well as the maximum per-cycle contributions for 435 House and 33 Senate candidates ($5,200 each, for a total of $2,433,600). The committee could solicit and receive amounts totaling $2,563,200 from a single donor.
· A party’s national leaders could join forces to solicit contributions supporting all three national party committees ($64,800 each, for a total of $194,400), all state party committees ($20,000 each, for a total of $1,000,000), and the party’s presidential candidate and each of its House and Senate candidates ($5,200 each, for a total of $2,438,800). The grand total: $3,633,200 per election cycle.
· Presidential candidates (or candidates for other federal offices) and their parties could solicit the maximum contributions per cycle for their own campaign committees ($5,200), plus the maximum for the national party committees ($64,800 each, for a total of $194,400), plus the maximum for state party committees ($20,000 each, for a total of $1,000,000). The total amount such a candidate or committee could solicit from a single donor would be $1,199,600.
The brief points out that seven Supreme Court Justices, including Justice Kennedy, the author of the Citizens United decision, voted to uphold the federal ban on soliciting large contributions in the McConnell case:
As this Court recognized in McConnell, the prospect of candidates soliciting and receiving multi-million dollar checks from donors creates both the risk of corruption and the appearance of corruption. To be sure, these funds might not all be expended directly on the candidate’s own campaign. But this Court has not required a direct financial benefit to the candidate’s own campaign committee to recognize the potential for corruption or its appearance when a contributor makes a large donation at a candidate’s request. It is enough that the contribution benefits the party and its candidates, directly satisfying the request. Thus, in McConnell, seven Justices held that solicitation of very large contributions for national parties presented corruption concerns regardless of how those contributions were ultimately used. As the majority observed:
Large … donations [to parties or other organizations] at a candidate’s or officeholder’s behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder. Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself.
McConnell, 540 U.S. at 182. Justice Kennedy, joined by Chief Justice Rehnquist, agreed, explaining that “regulation of a candidate’s solicitation of funds” “furthers a constitutionally sufficient” anti-corruption interest, even “if the funds are given to another,” because “[t]he making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request).” Id. at 308 (Kennedy, J., concurring in judgment in part and dissenting in part). Thus, limiting the amounts candidates may raise for their parties, as well as other party candidates and organizations, “satisfies Buckley’s anticorruption rationale and the First Amendment’s guarantee.” Id.
The brief explains why, based on past history, soliciting and contributing very large contributions will occur in the absence of the aggregate contribution limits:
Eliminating FECA’s aggregate limits on party and candidate contributions would effectively negate the interests served by the soft-money solicitation ban upheld in McConnell by once again allowing candidates and officeholders to seek extremely large contributions to benefit themselves, their parties, and their political allies. Past experience provides every reason to believe that parties and candidates would take advantage of this opportunity. During the soft-money period, when limits on contributions to political parties were bypassed through contributions not covered by FECA (because they were supposedly not for federal election purposes), the parties and their officeholders established joint fundraising committees to solicit FECA-limited contributions to the candidates together with limited hard-money or unlimited soft-money contributions to party committees. In the 2000 elections, the last in which soft-money contributions to the national parties were permitted, individual contributors made more than 500 soft-money contributions to Democratic or Republican party committees of at least $100,000. Several made contributions of at least $1 million. The number of possible large donors today, and the amounts they would be willing to contribute, would undoubtedly be even higher, and if the parties and their candidates were once more permitted to tap them for amounts exceeding the current aggregate limits, they would certainly do so.
This conclusion is confirmed by the fact that parties and candidates have continued to operate joint fundraising committees up to the limits permitted by the soft-money ban and FECA’s aggregate limits. Thus, in the 2012 presidential elections, both major-party presidential candidates operated joint fundraising committees called, respectively, the Obama Victory Fund and Romney Victory, which sought both contributions to the candidates’ campaign committees and the maximum contributions to party committees permissible under the applicable aggregate limits ($70,800 for the 2012 election cycle). Hundreds of donors responded: 721 donors made maximum party contributions through Romney Victory, while 536 hit the party aggregate caps through the Obama Victory Fund. If the presidential candidates had been able to ask for contributions exceeding half a million dollars per year for all party committees in conjunction with their own campaign committees—as they would have absent aggregate limits—they would undoubtedly have done so. And donors would almost certainly have responded with six-figure contributions.
All told, more than 1,700 donors gave the maximum permitted amount to committees of the major parties in the 2012 election cycle, accounting for over $100 million in contributions. Almost 600 reached the aggregate limit on contributions to federal candidates. These figures indicate the extent to which the existing limits provide scope for substantial contributions by those who are in a position to, and choose to, make them. But they also starkly reveal the potential for candidates and officeholders to solicit far larger contributions if allowed to do so.
The brief concludes by urging the Supreme Court to defer to the judgment by Congress that aggregate contribution limits are necessary to protect against the improper influence of money on government decisions:
Permitting the parties and their candidates to solicit and receive contributions of millions of dollars from individual donors would again foster the appearance that our officeholders and our government are for sale. That is the judgment Congress expressed in enacting aggregate limits, and the Court “must give weight to attempts by Congress to seek to dispel either the appearance or the reality of [improper] influences” as long as the remedies chosen by Congress “comply with the First Amendment.” Citizens United, 558 U.S. at 361. Here, Congress has enacted remedies long recognized by this Court as complying with the First Amendment: limits on campaign contributions. Setting aside those carefully constructed limits, which respect the important interests of candidates and political parties as well as the critical need to prevent the corrupting influence of extremely large contributions, would indeed threaten to “cause the electorate to lose faith in our democracy.” Id. at 360.
