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McCutcheon and the Biennial Bottleneck
The aggregate limit on contributions to party committees hurts democracy.


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Stephen M. Hoersting

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.

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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.



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