The Federal Election Commission not only limits how much an individual can give to a particular candidate, PAC, or party committee, it also limits the aggregate amount an individual can give to all federal political committees during a two-year period (the aggregate biennial limit).
Earlier this week, the Supreme Court accepted a case challenging the biennial limits. The lower court upheld the limits as necessary to prevent circumvention of the contribution limits to any one candidate, PAC, or party. Under the court’s theory, an individual could give a large amount to a party committee, which could then use that money to contribute to a candidate or make coordinated expenditures for that candidate. This would be true even if the individual had “maxed out” to the candidate in direct contributions. The plaintiffs argue that the aggregate limits do nothing to prevent quid pro quo corruption – which the Supreme Court has said is the only basis for restricting contributions – since there are already limits on how much an individual can give to any one candidate.
Although it is always difficult to predict what the Supreme Court will do, it seems to us that there are three different outcomes possible:
1.) The Court could affirm the district court and uphold the limits based on the anti-circumvention rationale.
2.) The Court could strike down the limits, using an intermediate level of scrutiny (there is much debate about how much deference a court should give to legislative decisions about contribution limits). This would do away with the aggregate biennial limits, but perhaps discourage further challenges to the individual limits or to prohibitions on corporate contributions.
3.) The Court could articulate a stricter level of scrutiny that would invite challenges to virtually all contribution limits.
If the Court were to apply a stricter level of scrutiny to contribution limits, it will not take long before we see challenges to the amount of the individual limits or the prohibitions on corporate contributions. In fact, the Court is currently considering whether to hear a separate case involving the constitutionality of the corporate contribution ban. Perhaps fearing the worst from the Court, and recognizing that in the wake of Citizens United independent groups are able to raise much larger amounts than candidates and parties, some reform advocates are suggesting it may be time to abandon contribution limits altogether in return for more rigorous disclosure rules. As Larry Norton said earlier in USA Today, “Any campaign-finance restriction that gets heard by the Supreme Court right now is vulnerable.”
If you’d like to hear more about this case, be sure to listen to The Inner Loop on Thursday, February 28 at 1:00, when Ron Jacobs will talk to longtime Washington hands Howard Marlowe and Michael Willis or sign up for the American League of Lobbyists’ presentation on the topic.