McCutcheon and the Biennial Bottleneck

by Stephen M. Hoersting
The aggregate limit on contributions to party committees hurts democracy.

It has been two weeks since the Supreme Court opened its October term with argument in McCutcheon v. FEC. In that time, campaign-finance reformers have taken to the editorial pages to express their hopes that the Court will deny Alabama businessman Shaun McCutcheon’s right to make contributions under certain limits to the several committees of the Republican party, even if it vindicates his right to make limited contributions to the candidates of his choice.

McCutcheon and the Republican National Committee are challenging the “biennial aggregate limits” of federal campaign-finance law. Under current law, while individuals are permitted to contribute up to a “base limit” of $2,600 to a candidate in a given election cycle, their aggregate contributions to federal candidates may not exceed $48,600, and there is a biennial aggregate cap of $74,600 on an individual’s contributions to all PACs and party committees.

These aggregate limits have the effect of restricting the number of candidates, and committees of a political party, an individual may support in an election cycle. Preserving a biennial aggregate limit that prevents individuals from contributing a permissible base amount to various committees of the political parties would damage democracy.

Here is why.

The McCain-Feingold campaign-finance law of 2002 restricts how state, county, and local party committees may finance what the law calls “voter registration,” “voter identification,” “generic campaign activity,” and “get-out-the-vote” drives for all contests in a federal-election year, from dog catcher to president. It requires parties to finance these activities from an acount made up of donations of $10,000 or less annually. (Another account, named for Senator Carl Levin (D., Mich.), is included in the law, but it requires the use of precious federal money to solicit “Levin” money, not monies allowable under state law.) Corporations and unions no longer may contribute. Party officials, not just candidates, are prohibited from coordinating the voter-mobilization activities of outside organizations. And the $10,000 an individual may contribute is a limit that includes all state, county, and local party committees within a state. With 114 counties in the perennially purple state of Missouri alone, one can see that these restrictions significantly limit resources.

In short, McCain-Feingold put party-committee voter mobilization in a box, snapped shut the lid, and poked a few air holes for the First Amendment’s sake.

But the biennial aggregate limit was the coup de grâce.

Two of the three national Republican party committees explained in a brief to the Court that, under the biennial limit, any “donor [who] wishes to support the national party committees” with annual contributions of $12,433, or roughly 40 percent of the base limit, must “forego supporting any state party committees” committed to voter mobilization during the biennium.

The population of the U.S. has increased by 37 million from 2000 to 2010. Yet Republican turnout for the presidential election was 62 million in 2004, 60 million in 2008, and 57 million in 2012. Perhaps Republican candidates are increasingly disliked. And perhaps organizations that cannot raise adequate resources cannot get out the voters.

As of August, just under 15 months from the 2014 midterm elections, the Democratic National Committee is $18.1 million in debt while the RNC reports having $12.5 million cash on hand. Yet Democrats aren’t worried. Why? Perhaps because McCain-Feingold was enacted at a time when Democratic voter registration was largely being handled by community organizations and get-out-the-vote drives were largely being handled by labor unions. The $1.1 billion in political activity that unions reported to the Federal Election Commission from 2005 to 2011 was eclipsed by an additional $3.3 billion they reported to the Department of Labor, according to a Wall Street Journal analysis.

That $4.4 billion far exceeds the hypothetical $3.6 million check that was the subject of one colloquy among the justices during oral argument in McCutcheon. The government argued that lifting the biennial limit might allow an individual to write one check to a joint fundraising committee, and that a party leader could receive it. But any such check would require a joint fundraising committee of unprecedented size — requiring the assent of 523 candidates and committees — and still would not permit any single party leader to control the proceeds.

But Democrats already have a party leader whose organization is able to accept $3.6 million checks and use the money to form voters’ opinions in an unending series of policy battles: Organizing for Action, the policy-promotion arm of President Barack Obama. It accepts legally unrestricted donations, leases the Obama campaign’s e-mail list, and sends messages to 38 million followers under the Twitter handle “Barack Obama.” Last week, OFA tweeted incessantly that House Republicans, all up for reelection in 2014, were taking “hostages” and exacting “ransom” for not meeting the president’s demands on the debt ceiling — tweets in tune with the “attack ads” that were used to justify McCain-Feingold over a decade ago.

Constitutionally, the distinction between McCain-Feingold’s restrictions on party-committee issue advocacy and the unrestricted advocacy of OFA cannot turn on the fact that President Obama is not a candidate for reelection. His not being a candidate in the current election cycle would apply equally to the hypothetical “party leader” the Supreme Court asked about during oral argument in McCutcheon v. FEC. Nor can the distinction turn on the fact that OFA is promoting, with its unrestricted funds, issues and not candidates. The soft-money ban, upheld by the Court’s McConnell v. FEC opinion of 2003, restricts the national party committees’ ability to speak about issues. Money raised to elect candidates was already limited then as it is now.

If unrestricted solicitations by party leaders are the concern, Congress can tailor a prohibition.

And if OFA can secure a $3.6 million check for the nation’s most powerful party leader, to be spent solely at his discretion, there remains no reason why the Court should not strike a biennial aggregate limit that prevents Mr. McCutcheon from contributing to party committees a base amount Congress says poses no threat of corruption.

— Stephen M. Hoersting is of counsel to plaintiffs in McCutcheon and Republican National Committee v. Federal Election Commission.

Editor’s Note: This article has been amended since its initial posting.