Fred Wertheimer Op-ed: “Supreme Court Could Create System of Legalized Bribery”

Supreme Court Could Create System of Legalized Bribery in Washington Depending on its Decision in McCutcheon Case

By: Democracy 21 President Fred Wertheimer

There are enormous stakes for the country in the campaign finance case the Supreme Court agreed to review this week.

If the Supreme Court strikes down the existing limits on the aggregate amount an individual can give to all federal candidates and all party committees in a two-year election cycle, the Justices will create a system of legalized bribery in Washington.

Such a decision by the Court would be a gold mine for big donors interested in buying  government decisions and would wreak havoc on the interests of ordinary Americans.

McCutcheon v. Federal Election Commission, the case to be considered by the Supreme Court, involves a challenge by Shaun McCutcheon and the Republican National Committee to the constitutionality of the federal aggregate contribution limits, upheld by the Supreme Court in 1976 in Buckley v. Valeo.

A decision by the Court to reverse that decision would not only strike down the aggregate contribution limits enacted in 1974, but would also eviscerate an essential anti-corruption provision enacted in 2002 and upheld by the Supreme Court in 2003 in McConnell v. FEC.  That provision prohibits a federal officeholder or candidate from soliciting contributions that do not comply with the federal contribution limits, including the aggregate limits.

If the aggregate limits are struck down, officeholders would be able to directly solicit the huge contributions from individual donors that the solicitation ban is intended to prohibit.

The Supreme Court in the landmark Buckley case found that a system that allowed huge campaign contributions was an inherently corrupt system. The Court recognized that contribution limits were necessary to deal with:

[T]he reality or appearance of corruption inherent in a system permitting unlimited financial contributions,even when the identities of the contributors and the amounts of their contributions are fully disclosed. (Emphasis added.]

The Supreme Court in the McConnell case recognized the inherent dangers of corruption if federal officeholders are allowed to solicit huge contributions from donors. In upholding the constitutionality of the federal ban on soliciting soft money, the Court stated:

Large soft-money donations 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 v. FEC, 540 U.S. 93, 182 (2003).

Even Justice Kennedy, who voted to strike down the other restrictions on soft money, agreed that the ban on the solicitation of large soft money contributions by federal officeholders was constitutional. Kennedy wrote:

The 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). Rules governing candidates’ or officeholders’ solicitation of contributions are, therefore, regulations governing their receipt of quids. This regulation fits under Buckley’s anti-corruption rationale.

540 U.S. at 308

The practical consequences of removing the aggregate limits are illustrated by the fundraising that took place in the 2012 presidential elections.

During the last election, because of the aggregate contribution limits, an individual could give a maximum total of $70,800 to party committees and a maximum total of $46,200 to federal candidates in the two-year election cycle.

In order to solicit the largest allowable check from a donor to support his campaign, President Obama established a joint fundraising account, the Obama Victory Fund.

The President solicited individual contributions for the Fund of up to $75,800 per donor to support his campaign, the maximum a donor could give to his campaign and party, which was then divided up among the president’s campaign, the DNC and several state parties. (Republican nominee Mitt Romney established a similar joint fundraising account.)

Take away the aggregate limit on individual giving to parties and a presidential candidate in the 2016 election could solicit individual checks from donors of up to $1,194,000 per donor to be spent by his party on his campaign.[1]

Similarly, take away the aggregate total limit on individual contributions to candidates and a House Speaker or Senate Majority Leader could solicit individual checks from donors of up to $2,433,600 per donor to be distributed among their congressional candidates up to $5,200 per candidate.[2]

Or, any powerful federal officeholder could solicit individual checks from donors of up to $3,627,600 per donor for the officeholder’s party committees and congressional candidates.

It is axiomatic in American politics that when it comes to raising campaign money, anything that can legally be done will be done.

Thus, President Obama solicited checks for $75,800 for his presidential campaign and party in 2012, the maximum a donor could give.

Checks in excess of $1 million, $2 million and $3 million per donor, the maximums that a donor could give, will be solicited by federal officeholders in future elections if the aggregate limits on individual contributions are struck down by the Supreme Court.

It is simply not possible to have a President or any other federal officeholder soliciting individual contributions in excess of $1 million, $2 million or $3 million per donor without creating opportunities for the corruption of federal officeholders and government decisions.

The Buckley and McConnell Supreme Court decisions and Justice Kennedy in his concurring opinion in McConnell all recognized this reality.

Despite the profound problems created by the Supreme Court’s misguided decision in the Citizens United case, furthermore, this provides no justification for the creation of a system of legalized bribery that opens the door wide to the corruption of federal officeholders and government decisions.

It is time for this Supreme Court to stop acting like a super Legislature.

It is time for this Supreme Court to stop issuing radical decisions that overturn decades of national policy designed to prevent government corruption. A little respect by this Supreme Court for the constitutional right of citizens and Congress to protect the government from corruption is in order.

Citizens deserve no less.

[1] Through the use of a joint fundraising committee involving national and state party committees, a single contribution of $1,194,000 would include $32,400 per year to each of the three national party committees, or $97,200 per year combined, and $10,000 per year to each of the 50 state parties, or $500,000 per year combined, for an overall total of $597,200 per year and an overall total of $1,194,000 for a two-year election cycle. Since parties committees can make unlimited internal transfers to other party committees, the joint fundraising committee could first distribute all of the money to each of the separate party committees involved and then could have it all come back to the national party committee in one electronic transaction.

[2] Through the use of a joint fundraising committee involving the committees of every candidate for Congress from a single party, a single individual contribution of $2,433,600 would include $5,200 for the primary and general election of 435 House candidates and 33 Senate candidates.