How a Supreme Court Case Made an Alabama Businessman Famous

Eyes all over Washington are on the <em>McCutcheon</em> campaign finance case — and McCutcheon himself

Shaun McCutcheon (C) plaintiff in a case of McCutcheon v. Federal Election Commission, leaves the Supreme Court on October 8, 2013 in Washington, DC. The court heard oral arguments in McCutcheon v. Federal Election Committee, a first amendment case that will determine how much money an individual can contribute directly to political campaigns. 
National Journal
Michael Catalin
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Michael Catalin
March 16, 2014, 7:39 a.m.

Shaun Mc­Cutcheon, the plaintiff in a cru­cial cam­paign fin­ance case pending be­fore the Su­preme Court, can hardly wait for the justices to rule. Whatever they de­cide, he’s ready, with his e-book, Out­sider In­side: The Su­preme Court, poised to pub­lish on his web­site with­in two days of the de­cision.

That Mc­Cutcheon — a busi­ness­man, en­gin­eer, polit­ic­al donor, and First Amend­ment ad­voc­ate from Alabama — is poised to take ad­vant­age of the Court’s rul­ing hints at the high stakes for polit­ic­al parties, can­did­ates, and com­mit­tees.

It also sug­gests just what a star he’s be­come.

Since the Court heard or­al ar­gu­ments in Oc­to­ber, Mc­Cutcheon is ex­per­i­en­cing a kind of polit­ic­al fame, pos­ing for pho­tos with fans at CPAC, pen­ning ed­it­or­i­als in Belt­way pub­lic­a­tions, get­ting to know Re­pub­lic­an Na­tion­al Com­mit­tee Chair­man Re­ince Priebus, and mix­ing with re­port­ers.

“I’ll come home, and there will be a mes­sage on my an­swer­ing ma­chine from Nina Toten­berg — like she’s my best friend,” he said. “Even in Alabama I’ve been no­ticed.”

The fame stems from the fact that Mc­Cutcheon is the plaintiff in Mc­Cutcheon v. Fed­er­al Elec­tion Com­mis­sion, de­scribed by some as po­ten­tially a land­mark suit that could bookend the cam­paign fin­ance de­reg­u­la­tion that the Court began in the Cit­izens United case.

At the heart of the Mc­Cutcheon case is wheth­er Con­gress can con­sti­tu­tion­ally lim­it the total amount in­di­vidu­als may give to can­did­ates, polit­ic­al com­mit­tees, and parties com­bined. This is known as the ag­greg­ate lim­it.

Un­der the law, in­di­vidu­als can cur­rently give $48,600 to can­did­ates and $74,600 to PACs and parties, with an over­all cap of $123,200 per cycle. What Mc­Cutcheon and the Re­pub­lic­an Party are seek­ing to do is lift that over­all cap, ar­guing that the lim­it vi­ol­ates the Con­sti­tu­tion.

“Free speech is just try­ing to spread ideas, giv­ing people more in­form­a­tion, cre­at­ing com­pet­i­tion, and com­pet­i­tion in elec­tions is only gonna be a good thing,” Mc­Cutcheon said.

Not sur­pris­ingly, Demo­crats ob­ject to the GOP ar­gu­ment, say­ing that large donors can in­flu­ence cam­paigns, and this in­flu­ence can lead to cor­rup­tion or the ap­pear­ance of cor­rup­tion.

“If Mr. Mc­Cutcheon pre­vails it will of course fur­ther warp the in­cent­ive struc­ture for elec­ted of­fi­cials who are now forced to so­li­cit these con­tri­bu­tions,” said Josh Or­ton, polit­ic­al dir­ect­or of Pro­gress­ives United, a fed­er­al PAC star­ted by former Sen. Russ Fein­gold of Wis­con­sin.

In prac­tic­al terms, here’s what it would mean if the Court ruled in Mc­Cutcheon’s fa­vor: Donors would go from be­ing able to give $2,600 each to 18 can­did­ates, which is what can be done un­der the cur­rent cap, to giv­ing $2,600 each to an un­lim­ited num­ber of can­did­ates.

That’s not the only po­ten­tial re­per­cus­sion. Na­tion­al parties may also be­ne­fit by set­ting up joint fun­draisers with state parties to gath­er more money from donors. “To me the biggest im­pact would be the re­turn of the ‘big ask’ where lead­er­ship mem­bers and party lead­ers so­li­cit sev­en-fig­ure con­tri­bu­tions to these joint ef­forts,” said Bob Bier­sack, a former FEC of­fi­cial now at the Cen­ter for Re­spons­ive Polit­ics, in an email. “Feels like the ‘90s soft money days to me.”

Demo­crats see cor­rup­tion there. Mc­Cutcheon sees the ex­er­cise of free speech. “I think the First Amend­ment cer­tainly out­weighs the gov­ern­ment telling us how we are go­ing to elect the gov­ern­ment,” he said.

If he does suc­ceed with his case, it’s not just the book that Mc­Cutcheon has ready to go. He says he has already maxed out to the RNC and ex­pects to give more to the oth­er polit­ic­al com­mit­tees, in­clud­ing the Na­tion­al Re­pub­lic­an Sen­at­ori­al Com­mit­tee and the Na­tion­al Re­pub­lic­an Con­gres­sion­al Com­mit­tee. Mc­Cutcheon said he hasn’t settled on any can­did­ates in par­tic­u­lar he plans to fund.

And it’s not just Mc­Cutcheon await­ing the Court’s de­cision, which ob­serv­ers ad­mit is dif­fi­cult to pre­dict. The parties have an in­terest too.

“I’m sure they’re wait­ing with a list of donors that are maxed out,” said Ken Gross, a polit­ic­al law at­tor­ney and part­ner at Skad­den. “I’m sure they’re poised to hit them up. That will be the most im­me­di­ate palp­able ef­fect.”

That might be an un­der­state­ment. The case has a grav­it­a­tion­al force of its own. It has at­trac­ted amicus briefs from Sen­ate Minor­ity Lead­er Mitch Mc­Con­nell; the House and Sen­ate GOP cam­paign arms; and Demo­crat­ic House mem­bers. The rank­ing mem­bers of the House Budget Com­mit­tee and Home­land Se­cur­ity Ap­pro­pri­ations Sub­com­mit­tee — Chris Van Hol­len of Mary­land and Dav­id Price of North Car­o­lina, re­spect­ively — also sub­mit­ted a joint brief, sep­ar­ately from the their Demo­crat­ic col­leagues.

Mc­Cutcheon de­scribes all the at­ten­tion in pos­it­ive terms and said he wants to pur­sue free speech more, pos­sibly work­ing with the Coolidge-Re­agan Found­a­tion. Asked wheth­er he’ll seek a suit to end in­di­vidu­al lim­its, he laughed.

“I think the chances an in­di­vidu­al could do two Su­preme Court cases in a life­time “¦ ” he said, but shif­ted gears mid-sen­tence. “I need some time off.”

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