Thursday, April 3, 2014

McCutcheon v. FEC

Yesterday, the Supreme Court struck down aggregate limits on contributions to congressional and Presidential campaigns (as well as political parties and some PAC's).  McCutcheon v. FEC will be accepted as a companion case to Citizens United v. FEC, but the two have significantly different rulings.

Citizens United opened the door for "Super-PACs" to spend unlimited sums of money through "independent" (i.e., non-coordinated) communications, such as television advertisements.  It did not touch contribution limits, which stand at $2,600 for individuals and $5,000 for most PACs.  Along with those limits, the FEC capped all contributions for an individual (or corporation) at $123,000 ($48,600 limit to candidates, $74,600 limit to PAC's).

Relying on and sustaining the per-candidate contribution limits, the McCutcheon Court struck down the aggregate cap(s).  Acknowledging that quid pro quo corruption was a reasonable basis for the restriction of candidate contributions, the Court rejected the idea that money buys influence:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.


Recasting as corruption a donor’s widely distributed support for a political party would dramatically expand government regulation of the political process.

The Court's concern with aggregate limits broke down to a simple issue of math.  If a donor had exhausted the aggregate donor limit, they were effectively prohibited from financially supporting any other candidate.

The Court also rejected the FEC's argument that aggregate limits prevent circumvention of the individual limits by creating pass-through contributions wherein a contribution to one candidate will then be "re-gifted" to a targeted campaign for which the original donor had already exhausted the individual limit.

Notably, the Citizens United decision prompted a rewrite of Maryland's campaign finance laws and David Lubin at Seventh State interprets McCutcheon to prompt a similar review.  We have aggregate limits of $10,000, but these limits are often exceeded by way of the LLC loophole.

So what's different today from yesterday?  Not too much.  Super-PAC's had effectively eviscerated the intent and purpose of campaign finance laws sufficient to give interested money free reign in influencing political outcomes.  McCutcheon allows a wealthy donor to coordinate political action across an unlimited number of elections.  Conceivably, that donor could max out for every federal office in the land, which seems to be the explicit intent of the Court's decision.


Note: I woke up on Monday with a single thought running through my head - "Traditions are important."  I was going to Opening Day with a group of friends, two of whom had gone with me to Opening Day for the past four years.  In that sleepy haze, I realized that I had dropped the ball on another important tradition - The Blogaversary.  On March 14, this blog turned five years old.  Completely forgot.  And to be honest, that made me very sad.  Time moves on and I am truly enjoying my time on the campaign trail, but it has not been without some painful changes along the way.

Have a great Thursday doing what you love!