Supreme Court Ruling on Political Money Won’t Cause Upheaval — Yet

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
Elahe Izadi
Oct. 22, 2013, 6:01 p.m.

A case that’s un­der con­sid­er­a­tion by the Su­preme Court could lay the ground­work for seis­mic-level shifts in the way money in­ter­sects with polit­ics.

Un­der ques­tion is wheth­er the ag­greg­ate cap on the amount an in­di­vidu­al can donate to can­did­ates, parties, and PACs is con­sti­tu­tion­al. Alabama busi­ness­man Shaun Mc­Cutcheon and the Re­pub­lic­an Na­tion­al Com­mit­tee brought the suit, in Mc­Cutcheon v. Fed­er­al Elec­tion Com­mis­sion, which was ar­gued be­fore the Court Oct. 8. Mc­Cutcheon’s po­s­i­tion is that the cap vi­ol­ates his First Amend­ment rights.

The case does not chal­lenge the $2,600 lim­it on an in­di­vidu­al con­tri­bu­tion to a fed­er­al can­did­ate. Rather, what is at play is the total that an in­di­vidu­al can con­trib­ute to fed­er­al can­did­ates, parties, and com­mit­tees. The cur­rent cap of $123,200 in­cludes a $48,600 lim­it on con­tri­bu­tions to all can­did­ates and $74,600 to PACs and parties. The ag­greg­ate cap is in­dexed for in­fla­tion in odd-num­ber years.

One way to see how many donors could take ad­vant­age of high­er or no ag­greg­ate caps is by ex­amin­ing how many gave the max­im­um amount in the 2012 cycle. The Cen­ter for Re­spons­ive Polit­ics found that 653 in­di­vidu­als donated the max­im­um amount to the Demo­crat­ic Party, while 1,062 gave the max­im­um amount to the GOP. And 591 donors gave the max­im­um amount to fed­er­al can­did­ates.

Des­pite the fact that pro-Rom­ney-lean­ing su­per PACs out­spent pro-Obama ones in 2012, Demo­crats still won the elec­tion. “Any­time you make it easi­er for more big money to come in, we’re go­ing to be at a dis­ad­vant­age,” a na­tion­al Demo­crat­ic con­sult­ant said. “Does that mean the end of the world for us? No.”

Tre­vor Pot­ter, pres­id­ent of the Cam­paign Leg­al Cen­ter, has said “the real threat” is the im­pact the Court’s de­cision could have on joint fun­drais­ing com­mit­tees, or JFCs. In 2012, 536 donors gave the max­im­um amount to the Obama Vic­tory Fund, while 721 gave the max­im­um amount to the Rom­ney Vic­tory Fund.

“Without those lim­its, each polit­ic­al party could so­li­cit con­tri­bu­tions to JFCs of over $1 mil­lion per cycle to fed­er­al and state party com­mit­tees alone, and $3.5 mil­lion if party can­did­ates for the House and Sen­ate are in­cluded in the joint fun­drais­ing ef­fort,” Pot­ter said at a Na­tion­al Press Club event in Oc­to­ber.

Few places al­low un­lim­ited con­tri­bu­tions. Four states per­mit this in their races: Mis­souri, Ore­gon, Utah, and Vir­gin­ia. Mean­while, 39 states lim­it con­tri­bu­tions to can­did­ates from in­di­vidu­als, polit­ic­al parties, PACs, cor­por­a­tions, and uni­ons.

While Cit­izens United opened the door to un­lim­ited money in polit­ics, it forced the funds to be funneled through out­side, in­de­pend­ent groups. It’s against the law for those groups to co­ordin­ate of­fi­cially with cam­paigns. But as it stands now, un­lim­ited money is already in the game in polit­ics. If dona­tions went dir­ectly to parties and can­did­ates, those can­did­ates would have more con­trol over how this money is spent with­in a lar­ger cam­paign strategy.

“The dirty little secret about all this is, money al­ways finds a way to sneak through the cracks,” the Demo­crat­ic con­sult­ant said.

As for the be­ne­fit that donors would get from giv­ing dir­ectly to can­did­ates or cam­paigns, some are skep­tic­al that big donors will back off donat­ing to out­side groups so long as in­di­vidu­al con­tri­bu­tions are still lim­ited.

“Right now, I don’t see the people giv­ing these massive checks … do­ing it for lumps of meat of le­gis­la­tion,” said a GOP con­sult­ant. “It’s be­cause you want to be a big dog.”

Paul Sher­man, a seni­or at­tor­ney with the In­sti­tute for Justice, a liber­tari­an firm, pre­dicted the Court will strike down ag­greg­ate lim­its, but ad­ded that the de­cision’s im­pact will de­pend on how ex­actly the justices do that. He ex­pects that if the ag­greg­ate cap gets lif­ted or ab­ol­ished, it would lay the ground­work for a chal­lenge on in­di­vidu­al fed­er­al con­tri­bu­tions. “And that would be a big change.”

“One pos­sible side ef­fect of rul­ing in fa­vor of the plaintiffs is that it could shift money back to­ward polit­ic­al parties and polit­ic­al can­did­ates, and that in turn could im­prove the tone of the polit­ic­al de­bate,” Sher­man noted.

“Party com­mit­tees will like this more, par­tic­u­larly on the Re­pub­lic­an side,” said the Demo­crat­ic con­sult­ant. “It ac­tu­ally makes out­side groups like [Amer­ic­an] Cross­roads a tiny bit less rel­ev­ant.”

But some in the fun­drais­ing world point out that, at least on the con­gres­sion­al level, play­ing big in the primar­ies is where it counts — and it’s un­clear how large of an ef­fect the Su­preme Court case would have for those situ­ations, where of­fi­cial party com­mit­tees don’t play as ma­jor a role.

In the end, lift­ing the ag­greg­ate cap may just make it easi­er for party com­mit­tees to raise cash they would have got­ten any­way. Re­pub­lic­an Na­tion­al Com­mit­tee Chair­man Re­ince Priebus “may have to do an eighth as many chick­en din­ners,” the GOP con­sult­ant said.

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