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.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Kevin Glandon Kevin Glandon

Kevin Glandon is an associate in the firm’s government affairs, litigation, and white collar defense and investigations practice groups.  Glandon advises a wide range of clients regarding the Federal Election Campaign Act and FEC regulations; state and SEC pay-to-play restrictions; federal and state…

Kevin Glandon is an associate in the firm’s government affairs, litigation, and white collar defense and investigations practice groups.  Glandon advises a wide range of clients regarding the Federal Election Campaign Act and FEC regulations; state and SEC pay-to-play restrictions; federal and state campaign finance, gift, and lobbying laws; and U.S. House and Senate ethics rules.

Photo of Brendan Parets Brendan Parets

Brendan Parets helps organizations resolve their most sensitive problems involving legal, political, and public relations challenges. He deploys his experiences in a Senate leadership office, as the chief legal officer for a presidential campaign, and representing organizations in Department of Justice and administrative…

Brendan Parets helps organizations resolve their most sensitive problems involving legal, political, and public relations challenges. He deploys his experiences in a Senate leadership office, as the chief legal officer for a presidential campaign, and representing organizations in Department of Justice and administrative investigations and in civil litigation to provide holistic advice that reflects business and political imperatives.

Brendan represents corporations and individuals facing congressional and administrative investigations. He also assists organizations with policy matters before Congress and counsels corporations, non-profit entities, and political committees on compliance with federal and state campaign finance laws.

Brendan rejoined Covington after serving as Chief Counsel to Senator Martha McSally (R-AZ), where he oversaw Senator McSally’s work on the Senate Committee on Banking, Housing, and Urban Affairs. Brendan also managed judiciary, commerce, telecommunications, tax, and trade issues for Senator McSally. He worked closely with Senate leadership, committees of jurisdiction, and executive branch agencies to achieve bipartisan compromise on judicial nominations, reform of Department of Homeland Security grant programs, and trade disputes.

He previously served as Chief Counsel to Senator Jon Kyl (R-AZ), Policy Counsel to the Senate Republican Policy Committee, a Senate leadership office chaired at the time by Senator John Barrasso (R-WY), and as Chief Counsel to Senator Lindsey Graham’s presidential campaign.