In his controlling opinion yesterday in McCutcheon v. FEC, Chief Justice John Roberts struck down the federal aggregate campaign contribution limits. These limits capped the total amount one individual could give to candidates, party committees, and PACs in a two-year election cycle. The purpose of the limits was to prevent donors from circumventing the per-candidate and per-committee limits by giving to one candidate or committee, only to have the recipient pass the funds along to one to which the donor had already contributed the maximum. However, in striking the limits, the Court said that the existing regulatory framework already made circumvention either illegal or implausible and that Congress could attempt to achieve the same “anti-circumvention” result through other means. It suggested additional limits on transfers among political parties and candidates, and stronger laws concerning contributions earmarked for use for a particular purpose.
For a variety of reasons, we think it is unlikely that the Court’s legislative proposals will be adopted in the near-term. First, it is not clear that the legislative proposals themselves are Constitutional. Indeed, the Court, in its opinion, includes the caveat that “[w]e do not mean to opine on the validity of any particular proposal,” i.e. there is no guarantee that these suggestions are constitutional. Second, it is highly unlikely that these limits would make it through today’s Congress. Recent attempts at campaign finance reform, like the DISCLOSE Act, have had little success. Finally, the FEC is currently so deadlocked that, unless Congress forces it into action, it is unlikely it will make any attempt to impose regulations to this effect on its own.