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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