Responses to Arguments Made by McCutcheon and RNC in Supreme Court Campaign Finance Case

 By Democracy 21 President Fred Wertheimer and Democracy 21 Counsel Don Simon

On October 8, the Supreme Court will hear oral argument in McCutcheon v. Federal Election Commission.

The case was brought by Shaun McCutcheon and the Republican National Committee and it challenges the constitutionality of the overall limits on the total amount an individual donor can contribute to all party committees and PACs and to all federal candidates, in a two-year election cycle.

The current overall contribution limits includes an overall limit of $74,600 on contributions by an individual to all political party committees and PACs, and an overall limit of $48,600 on contributions by an individual to all federal candidates,  in a two-year election cycle.

Striking down the overall limits would provide a tiny number of the wealthiest individuals in our country with new opportunities for “quid pro quo” corruption of our federal officeholders

This case is not simply about allowing Mr. McCutcheon to contribute the maximum amount of $5,200 per candidate to a few more candidates than he currently can do under the overall contribution limits. Nor is the case simply about allowing a donor to give more contributions to additional party committees, each of which complies with the contribution limit applicable to the specific party committee, than the donor can currently give.

Instead, this case is about allowing federal officeholders and candidates to solicit, and individual donors to give million-dollar and multi-million contributions to support candidates and parties directly. (See Democracy 21 Fact Sheet released on September 24.).

It is about whether President Obama and Mitt Romney could have solicited contributions of nearly $1.2 million per donor for their parties to support their 2012 presidential campaigns, instead of the $70, 800 maximum they were allowed to raise and donors were allowed to give in 2012 under the overall contribution limits.

The case is about whether donors can give in the future the kind of huge contributions that Congress has prohibited and that the Supreme Court has long held can be prohibited because they create opportunities for corruption and the appearance of corruption.

In 1976, the Supreme Court in Buckley v Valeo upheld the constitutionality of contribution limits, including overall contribution limits.  The Court drew a line between contribution limits, which the Court held are constitutional because they prevent corruption and the appearance of corruption, and expenditure limits, which the Court held are unconstitutional because they do not pose the threat of corruption.

Since Buckley, the Supreme Court for almost 40 years has repeatedly upheld the constitutionality of contribution limits and has reaffirmed the distinction drawn in Buckley between contribution limits and expenditure limits.

In Citizens United v Federal Election Commission, the Court reaffirmed the contribution/expenditure distinction in striking down a prohibition on independent expenditures by corporations. The Court, citing Buckley, also noted that large contributions could be given “to secure a political quid pro quo,” that contribution limits are “preventative” of this problem and that the limits are constitutional “in order to ensure against the reality or appearance of corruption”

Argument: Overall Contribution Limits Are Unnecessary to Prevent Corruption

For almost forty years, the Supreme Court in Buckley and later cases has taken the position that preventing corruption and the appearance of corruption are constitutionally sufficient grounds for placing limits on the size of contributions to federal candidates and parties.        

Plaintiffs in McCutcheon argue that the overall contribution limits do not serve to prevent corruption because each contribution to a candidate or party committee is subject to an underlying base contribution limit and each contribution therefore is, by definition, “non-corrupting.” 

Plaintiffs argue, in effect, that there is no danger of corruption if an individual contributes the base maximum amount of $2,600 for a primary and $2,600 for a general election to each of 435 House candidates of a party, even though the total amount contributed by the individual would be nearly $2.5 million.  Under the existing overall contribution limits, the maximum total amount that could be contributed is limited to $48,600.

Plaintiffs also argue that there is no danger of corruption if an individual contributes the base amount to each of the committees of a party – $64,800 to each of the three national party committees, and $20,000 to each of the 50 state party committees in a two-year election cycle, even though the total amount contributed by the individual would be nearly $1.2 million.  Under the existing overall contribution limits, the maximum total amount that could be contributed is limited to $74,600.

These arguments belie reality.

If the overall contribution limits are struck down, federal officeholders and candidates would be free to solicit million-dollar and multi-million contributions from individual donors, and donors would be able to give these huge amounts.

Regardless of whether the solicited contributions come from the donor in the form of a single check to a joint fundraising committee or in multiple checks to each candidate or party committee, the result is the same.

 For example, in the case of a political party, a President, House Speaker, Senate Majority Leader or any other officeholder, absent the overall contribution limits, could solicit and a single donor could contribute as much as $1.2 million to a single political party.

 These are precisely the kind of huge contributions that Congress has recognized since the Watergate reforms in 1974, and that the Supreme Court has held since the Buckley decision in 1976, are subject to contribution limits in order to prevent opportunities for corruption and the appearance of corruption.

The Supreme Court in the McConnell case in 2003 upheld the constitutionality of prohibiting similarly large “soft money” contributions to a political party in order to prevent corruption. The Court reaffirmed this position in the RNC case in 2010, with Chief Justice Roberts joining the majority in the 6 to 3 decision.

 These also are precisely the kind of huge contributions to a party that Congress in 2002 prohibited federal officeholders and candidates from soliciting. This solicitation prohibition was upheld as constitutional by the Supreme Court in the McConnell case by a 7 to 2 vote, with Justice Kennedy voting in the majority.

The Court stated in McConnell:

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.

This same language holds true today in the case of the huge contributions that could be solicited by officeholders and candidates, if the overall limits were struck down.  As the Court in essence said in McConnell, the nexus between the officeholder or candidate soliciting the large contribution and the donor making the contribution creates opportunities for corruption, regardless of how the contribution is then spent.

If the overall contribution limits were struck down, it would eviscerate the prohibition on soliciting large contributions and reopen the door to new opportunities for corruption.

Thus, the fact that a donor’s multi-million dollar contribution may be the total of multiple smaller contributions, each of which is subject to a contribution limit, does not in any way diminish the opportunities for “quid pro quo” corruption that would arise from the huge contribution an officeholder could solicit and a donor could contribute, absent the overall contribution limit.

Argument: Buckley Did Not Uphold the Existing Overall Contribution Limits

Plaintiffs argue that when the Supreme Court upheld an overall contribution limit in its 1976 decision in Buckley, it was in the context of a different set of contribution limits, so the prior ruling in Buckley on overall contribution limits does not apply today.

The Court in Buckley rejected a challenge to the constitutionality of the contribution limits in the 1974 law it was reviewing, including a challenge to the overall contribution limit. 

The Court said the overall contribution limit was a “quite modest restraint” that served “to prevent evasion” of the base contribution limits “by a person who might otherwise contribute massive amounts of money to a particular candidate through … huge contributions to the candidate’s political party.”

Plaintiffs argue that the Court in Buckley was reviewing a different kind of overall limit because at the time of the decision there were no base contribution limits on the amount that could be given to a PAC or political party committee. So, the only restraint on contributions to a PAC or party committee was provided by the overall limit. Base contribution limits for parties and PACs were added in 1976, and plaintiffs argue that the addition of those base limits makes unnecessary the overall limits upheld in Buckley.

But the base limits, which have been imposed on contributions to parties since Buckley, do not prevent individuals from making large contributions to a party in the absence of an overall limit. 

If a donor makes the maximum contribution to each of the three national party committees permitted by the base limit, a total of $194,400 could be contributed to a single party in an election cycle (or $388,800 by a donor and spouse).  If a donor makes the maximum contribution to each of the national and state committees of a party permitted by the base limits, a total of $1,194,000 (or $2,388,000 by a donor and spouse) could be contributed to a single party in an election cycle.

By any reasonable standard, those are huge contributions of the magnitude that provide opportunities for “quid pro quo” corruption of the officeholders, candidates and party leaders who solicit and who benefit from the huge contributions.

Thus, the Court’s concern in Buckley about an individual’s ability to make “huge contributions to the candidate’s political party” is every bit as important today as it was when the Court upheld the overall contribution limit in 1976.

Furthermore, the base contribution limit for candidates existed at the time the Court in Buckley upheld the overall contribution limit and the Supreme Court still upheld the overall contribution limit applicable to candidate contributions. The Court did not conclude that because there were base limits on contributions to candidates, the overall contribution limit was unnecessary and therefore unconstitutional as it applies to candidates.

Likewise, it follows that enacting base limits for parties and PACs after Buckley did not undermine the necessity for, and constitutionality of, the overall contribution limit as it applies to parties and PACs.

Argument: Use of Joint Committees to Raise Large Contributions is Speculation

Plaintiffs dismiss as speculation the threat that joint fundraising committees will be used as vehicles for officeholders and candidates to solicit and donors to contribute million dollar and multi-million dollar contributions to support candidates and parties. 

Alternatively, they argue that if joint fundraising committees pose such a danger in the absent of the overall limits, the solution is to ban joint fundraising committees, not impose overall contribution limits.

One need to look only at the 2012 presidential election to see that the use of joint fundraising committees is far from speculation. 

Both President Obama and Mitt Romney used joint fundraising committees in the 2012 election to solicit not only the maximum permissible contributions of $5,000 per donor to their own campaigns, but also the maximum contributions that individuals could give to a party under the overall contribution limits in 2012 – a total of $70, 800 to all party committees in an election cycle.

The only reason Obama and Romney did not solicit contributions of more than $70,800 per donor for their parties was because they were prohibited from doing so by the overall contribution limits. 

If the overall contribution limits were struck down, however, it is hardly speculation to assume that future presidential candidates, members of Congress and party leaders would solicit much larger contributions for their parties.  It is axiomatic in American politics that officeholders and candidates will seek the maximum contributions that they can legally raise.

Absent the overall limits, a single donor would be able to contribute almost $1.2 million to a party in an election cycle, either through a joint fundraising committee consisting of all the committees of the party, or through individual contributions to each of the committees of the party.

Either way, the bottom line would be the same – a nearly $1.2 million contribution contributed by an individual to a single party.

Thus, banning joint fundraising committees would not solve the problem of officeholders and candidates soliciting and wealthy donors giving million- dollar and multi-million dollar contributions to support parties and candidates directly.

Argument: Overall Contribution Limits Should be Struck Down Because Citizens United Has Disadvantaged Candidates and Parties

 Another argument that has been being made is that the overall contribution limits are disadvantageous to candidates and parties who cannot raise unlimited money while outside groups can and therefore the overall contribution limits should be struck down.

This, however, is not an issue that goes to the constitutionality of the overall contribution limits.

The Court has long distinguished between contribution limits that are constitutional because they prevent corruption, on the one hand, and expenditure limits that the Court has held unconstitutional because they do not prevent corruption, on the other hand.

Working within this framework, the Citizens United decision held that independent corporate expenditures do not pose a threat of corruption, because they are made independently of candidates and parties, and therefore cannot be limited. But the reasoning by the Court in Citizens United has no effect on the rationale the Court has repeatedly invoked to uphold the constitutionality of contribution limits, including overall contribution limits – that such limits are necessary in order to prevent corruption and the appearance of corruption.

In fact, Citizens United favorably repeats the Buckley contributions/expenditures distinction and the decision provides no support for the position that overall contribution limits are unconstitutional and should be struck down.

Furthermore, candidates and parties are not exactly starving for resources. Even under the existing overall contribution limits, federal candidates and parties spent $5.2 billion or 83 percent of the total expenditures made in the 2012 federal elections. This included more than $2 billion spent by the national parties. By comparison, outside groups spent about $1 billion or about 17 percent of the total expenditures in 2012.  Candidates and parties spent five times as much as outside groups, functioning under the overall contribution limits.

Conclusion

The Supreme Court does not have a legitimate basis for striking down the overall contribution limits.  Nearly forty years of Supreme Court precedents, along with the reality that soliciting and giving huge contributions create opportunities for “quid pro quo” corruption, make clear that the Court should continue to uphold the overall contribution limits. The Supreme Court should not return to our political system the legalized corruption that existed prior to the 1974 Watergate reforms, which included contribution limits and an overall contribution limit.