The Supreme Court’s latest major campaign finance decision, McCutcheon v. FEC, “does not involve” a challenge to current limits on contributions to political party committees and PACs, which the Court “previously upheld as serving the permissible objective of combatting corruption.”  But it nonetheless provides fodder for those who would challenge party and PAC limits.

The Court emphasized that there is only one permissible basis for “[a]ny regulation” of contribution limits (as opposed to disclosure):  Preventing quid pro quo corruption or the appearance thereof, a concept which “captures the notion of a direct exchange of an official act for money.”  As the Court seems to recognize, this concept, at its core, involves two actors:  a donor seeking a benefit, and a public official seeking a donation who is in a position to provide the benefit.

Unlike victorious candidates, however, neither parties nor PACs have the authority to engage in official acts.  As the Court states, “there is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly.”  Indeed, that risk “is generally applicable only to ‘the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder.’”

What purpose do limits on contributions to parties and PACs serve, then?  One concern expressed is that these recipients might serve as mere conduits for cash to a candidate.  In other words, limits might be justified as an anti-circumvention measure, a means of preventing evasion of limits on candidate contributions.  And indeed, these limits “create an additional hurdle for a donor who seeks both to channel a large amount of money to a particular candidate and to ensure that he gets the credit for doing so.”

But the same rationale that undercut the constitutionality of aggregate limits as an anti-circumvention measure also undermines limits on party and PAC contributions:  Other restrictions that prevent circumvention already exist, such as those regulating earmarking and the control of multiple committees, and these restrictions do not impose as significant a burden as a direct contribution limit.  Disclosure also helps deter corruption, and disclosure has become more effective with the advent of searchable online databases and increasing use of “big data” tools.  These other anti-circumvention measures would remain even if the party committee and PAC limits were eliminated, as would the corruption-deterring benefits of disclosure.

For the moment, the party and PAC contribution limits remain the law.  But it is inevitable that McCutcheon will be used to challenge the party and PAC limits.  We will be watching closely for that case.