In every election, campaigns and their political fundraisers must navigate a complex and ever-changing array of laws, which increasingly are being rewritten by the courts. The rules changed again last month, when the Supreme Court in McCutcheon v. FEC struck down the limit on the amount an individual may give during an election cycle to all federal candidate and PACs, and to the national political parties. While the ruling did not directly involve any state laws, the Court’s reasoning – that the First Amendment forbids restrictions on how many candidates or committees a donor may support – cast doubt on the constitutionality of laws in about a dozen states that also impose aggregate limits.
Yet with elections just weeks or months away, only a few of the states potentially affected by McCutcheon have indicated how they will interpret and apply it. Most have been silent, perhaps waiting for a lawsuit to force the issue, or a contributor who flouts the aggregate limit and dares the state to enforce it.
Three states have acted on their own initiative to clarify the impact of McCutcheon. Massachusetts regulators were first to announce that they would not enforce the state’s $12,500 limit on the amount an individual may contribute to all candidates, although they have reserved judgment on whether the state can still enforce a $5,000 aggregate limit on contributions to political parties.
Shortly thereafter, the Maryland election board announced that it will no longer enforce a $10,000 limit on aggregate contributions to state political committees during each four-year election cycle. While the Supreme Court’s ruling will have no effect on corporate contributions in federal elections – they remain prohibited under federal law – Maryland allows corporations to make contributions in state elections, subject to the same $4,000 limit per candidate or PAC that applies to individuals. Nonetheless, the State Attorney General apparently saw no path to defend the Maryland aggregate limit, if only as it applies to corporate contributors.
Last week, the Connecticut State Elections Enforcement Commission, in Advisory Opinion 2014-03, announced that it will not enforce the state’s $30,000 limit on an individual’s aggregate contributions to all candidates and committees for any single election and primary. As with Massachusetts and Maryland, the Commission stressed that McCutcheon does not affect the state’s “base” contribution limits – that is, the amount an individual may give to a single candidate or committee.
Wisconsin has also agreed that its $10,000 aggregate limit is unenforceable, although that concession came only after a lawsuit was filed challenging the limit.
In a blog post prior to the McCutcheon ruling, we discussed the case’s potential impact on state aggregate contribution limits. Shortly after our post, and before the Supreme Court ruling, Arizona repealed its aggregate limits. Today eight states and the District of Columbia have failed to say whether they will attempt to enforce their limits on aggregate contributions:
- Alaska: aggregate limit on contributions that candidates, parties, and certain groups may accept from out-of-state individuals
- District of Columbia: individuals and corporations may give no more than $8,500 to all candidates per election cycle.
- Kentucky: individuals may contribute $1,500 per year to all PACs and certain other organizations
- Maine: individuals and corporations may give no more than $25,000 to all candidate committees in Maine per year.
- New York: individuals may give no more than $150,000 per calendar year to all registered New York political committees. Although corporations are allowed to contribute to non-federal candidates in New York State, they are subject to a yearly aggregate cap of $5,000.
- Rhode Island: individuals may give no more than $10,000 per calendar year to all political committees.
- Washington: during the 21 days before an election, there is an aggregate limit on contributions from any one source (individuals or corporations) of $50,000 to statewide candidates and $5,000 in the aggregate to any other candidate or political committee.
- Wyoming: individuals may give no more than $25,000 to all political committees during the year of the general election and the preceding calendar year.
Maine may soon join the states that have announced they will not enforce aggregate limits in their elections. The Maine Governmental Ethics and Election Practices Commission plans to discuss the impact of McCutcheon at its next meeting on May 28. For several states, however, it may take another lawsuit to establish that one of their key restrictions on campaign contributions is unenforceable.