Who’s Paying For My Election?

By Brian Liu

      Amidst the noise and turmoil of the government shutdown on Capitol Hill, the case of McCutcheon v. FEC went on almost unnoticed, a mere block away in the chambers of the Supreme Court. This is the latest in a series of campaign finance cases since the now iconic Citizens United v. FEC, which defended the right for corporations, labor unions, or any other organized group to contribute independent expenditures to political campaigns.¹

       What is at stake here in McCutcheon is not the amount these organizations may contribute, but the amount individual donors may contribute; in particular, regarding the so-called “biennial limits to non-candidate/candidate committees…” (2 U.S.C. 441a(a)(3)) ² on allowed aggregate expenditures per election cycle, which currently stands at $123,200.³ These limits are the total amount an individual donor may contribute to political campaigns or political committees in a span of two years, irrespective of the base limit of $2,600 per candidate/candidate committee (among other limits). ³ Mr. McCutcheon, “dedicated Republican from suburban Birmingham, Alabama who is the CEO of Coalmont Electrical Development, an engineering firm that specializes in the mining industry”⁴ and the Republican National Committee are seeking to remove the biennial aggregate expenditure cap so that an individual may donate to as many campaigns as they so choose. 

      But how could this seemingly minor change affect the future of campaign finance law? What difference could the possibility of donating to, say, eighteen instead of seventeen campaigns have on any election results? 

      The danger ultimately lies in the recent development of Joint Fundraising Committees. They are the behemoths of campaign fundraising, accounting for a total of $949 million of spending in the last presidential election.⁵ These committees exist to apportion and redistribute massive amounts of funding to wherever they see fit, sending parts of large donations to different state committees or parties in accordance to base limits, thus circumventing the cap on donations. While this funding currently comes mostly from PACs and organization members (most notably Goldman Sachs, University of California, and Microsoft Corp.), should the Supreme Court strike down aggregate limits, we may very well begin to see donations from private individuals exceed those from organizations.⁶ Solicitor General Donald Verrilli noted that with these Joint Fundraising Committees, an individual could donate up to $3.5 million to a single campaign.⁷ This sets a dangerous precedent for campaigns, notably in smaller to medium-sized states; a sole individual in a state like Rhode Island or Delaware could fund entire Congressional campaigns. Admittedly, it is redoubtable many would choose to donate up to this new maximum. But it opens up the floodgates for all those who could now donate any amount between $123,200 and $3,500,000.

Likewise this precedent could spill over into state elections, setting the stage for state courts to remove aggregate limits. A donor in Young v. Vocke has already challenged the $10,000 contribution limit in Wisconsin and Arizona has removed aggregate limits for 2014 elections.⁸ State elections, with lower campaigning costs, are far more susceptible to influence from campaign contributors and could suffer the most immediate effects of these changes. 

Regardless of how the Supreme Court decides on this case, we are still far from outright purchased elections; donations should not be mistaken with bribery. And yet this decision could introduce a whole new class of campaign donors that would have little in the way of transparency, as individuals are not subject to the same disclosure obligations organizations are. There would be no means available to discern even individuals who’d donate the maximum amount of $3.5 million. As demands for government transparency mount over various other issues, including wiretapping and phone logging, it would undoubtedly be a step in the wrong direction should the court proceed in removing these aggregate limits.

Bibliography

1: CITIZENS UNITED v. FEDERAL ELECTION COMM’N." CITIZENS UNITED v. FEDERAL ELECTION COMM’N. Cornell University, 24 Mar. 2009. Web. 22 Oct. 2013.

 2: "McCutcheon v. Federal Election Commission." SCOTUSblog.org. Bloomberg Law, n.d. Web. 22 Oct. 2013. <http://www.scotusblog.com/case-files/cases/mccutcheon-v-federal-election-commission/>.

3: United States. Federal Election Commission. Contribution Limits Chart 2013-14. N.p., n.d. Web. 22 Oct. 2013.

4: Jacobs, Ben.  “Meet Shaun McCutcheon, the Republican Activist Trying to Make History at the Supreme Court,” thedailybeast.com, The Daily Beast Company LLC, 11 October, 2013.  Web. 27 Oct. 2013 <http://www.thedailybeast.com/articles/2013/10/08/meet-shaun-mccutcheon-the-republican-activist-trying-to-make-history-at-the-supreme-court.html/>.

5: "Top Contributors." Opensecrets RSS. Opensecrets.org, n.d. Web. 22 Oct. 2013.

6: "Joint Fundraising Committees." Opensecrets RSS. Opensecrets.org, n.d. Web. 22 Oct. 2013.

7: "Above the Law." McCutcheon Oral Argument: Or, Justice Scalia Explains How $3.5 Million Isn’t That Much Money. Breaking Media Inc., n.d. Web. 22 Oct. 2013. <http://abovethelaw.com/2013/10/mccutcheon-oral-argument-or-justice-scalia-explains-how-3-5-million-isnt-that-much-money/>.

8: Chen, Julius. "Wisconsin Aggregate Contribution Limit Challenged." Insidepoliticallaw.com. Convington & Burling LLP, 11 June 2013. Web. 22 Oct. 2013. <http://www.insidepoliticallaw.com/2013/06/11/wisconsin-aggregate-contribution-limit-challenged/>.

9: Fischer, Howard. "Court Blocks New Arizona Campaign Finance Law; Opens Door for Candidates to Receive More Money." East Valley Tribune. 10/13 Communications, 16 Oct. 2013. Web. 22 Oct. 2013. <http://www.eastvalleytribune.com/arizona/politics/article_007f2212-3681-11e3-9a22-001a4bcf887a.html>.