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McCutcheon’s Anti-Circumvention Folly

The McCutcheon ruling demonstrates an almost willful failure of the Court’s majority to comprehend the challenges associated with administering and enforcing campaign finance laws.

April 9, 2014

Since it was handed down last week, the four-justice plurality opinion in McCutcheon v. FEC has been lambasted for its astonishing naiveté about the actual workings of politics. That naiveté extends even further, however, to an almost willful failure to comprehend the challenges associated with administering and enforcing campaign finance laws.

McCutcheon struck down the federal “aggregate” contribution limits for individuals.  These overall limits were an important tool for preventing donors, politicians and others from circumventing the individual base limits (including the limit of $2,600 that any individual can contribute to a federal candidate in any one election). Preventing circumvention, through which a donor funnels excessive funds to a particular candidate or PAC in the guise of making multiple contributions, has been recognized as a legitimate regulatory objective since Buckley v. Valeo.  The McCutcheon plurality opinion blithely claims, however, that the government can guard against circumvention through other, more “narrowly-tailored” federal rules — such as Federal Election Commission (FEC) regulations limiting earmarking of contributions (whereby a contributor seeks to expressly or implicitly control how her money is spent).

Remarkably, little more than a decade ago, the Supreme Court rejected almost the exact same argument, in FEC v. Colorado Republican Federal Campaign Committee (sometimes called “Colorado II” to distinguish it from an earlier case).  In upholding certain limits on how much spending political parties could coordinate with candidates, the Court in Colorado II observed  that anti-earmarking rules, the alternative proposed by the Party committee, would detect “only the most clumsy attempts” at circumvention.  “To treat the earmarking provision as the outer limit of acceptable tailoring,” the Court went on, “would disarm any serious effort to limit the corrosive effects” of the wink-and-nod understandings through which parties could effectively pass excessive contributions on to candidates.

The Court should have applied the same logic in McCutcheon.  The FEC’s anti-earmarking rules and the other regulations cited in the plurality opinion may appear broad, but as the McCutcheon dissenters noted, they are rarely enforced.  In many cases application of such rules involves difficult factual questions about what a particular contributor knew or intended.  The FEC in its present state is wholly unsuited to get to the bottom of such issues. 

Since 2008, the Commission has been split along ideological lines and paralyzed by gridlock.  Last week, its vice chair took to the pages of The New York Times to call out her colleagues for refusing to enforce the Commission’s own rules.  Nor is the FEC likely to craft easier-to-administer regulations in the near future.  Its post-Citizens United rulemaking has been stalled for years.  Congress — which has failed to enact even a minor bill requiring U.S. Senate candidates to file disclosure reports electronically — has performed no better.

Under these circumstances, the plurality’s Pollyannaish expectation that “narrowly tailored” anti-circumvention measures will be updated as necessary and diligently enforced borders on the disingenuous.

Nevertheless, the Court has spoken. To strengthen the vitally important base contribution limits in accordance with McCutcheon, we must push for tighter rules governing the most obvious circumvention mechanisms, including contribution earmarking, joint fundraising, and transfers of funds between political party committees.  We must also strive for a more functional FEC that can effectively administer and enforce federal campaign finance laws.

(Photo: Wikimedia Commons)