See No Evil, Hear No Evil

American flag and 100 dollar bill

See no evil, hear no evil appears to be the mantra of those urging the Supreme Court to strike down the federal aggregate contribution limits, which currently allow an individual to give as much as $48,600 in total contributions to candidates in an election cycle, as well as $74,600 to political parties and PACs.

This approach is typified by the recent op-ed of Bradley Smith in the Wall Street Journal, “The Next Battle in the Fight for Free Speech” (September 30, 2013).

First, Mr. Smith stresses that the $2,600 “base” limit on how much an individual can contribute to a specific candidate is not being challenged in McCutcheon v. FEC.  He fails to acknowledge, however, that in the absence of the aggregate limits, donors could give a massive total sum of these $2,600 “limited” contributions: over$2.4 million to the candidates of their preferred party in a single election cycle.  Similarly, donors additionally could give over $1.1 million in such “limited” contributions to their party of choice if the aggregate limits were invalidated.

The selective blindness does not end there.

Mr. Smith begins his piece by suggesting that the aggregate limits unduly restrict the speech of Mr. McCutcheon, a multi-millionaire businessman and Super PAC founder, because he does not wield the influence of T.V. star Oprah Winfrey, who endorsed Barack Obama for President.  But if this were the measure of First Amendment rights, virtually all Americans would come up deficient.  Mr. Smith ignores the fact that only 0.4% of Americans made contributions of over $200 to federal candidates in 2012, and the number who actually reached the $46,200 aggregate sub-limit totaled a miniscule 591 persons, according to the Center for Responsive Politics.  If giving huge sums of aggregate campaign contributions is necessary to the exercise of free speech, as Mr. Smith suggests, then Mr. McCutcheon already can enjoy more “speech” than all but these 600 Americans.

Mr. Smith also turns a blind eye to the public purpose of the aggregate limits, claiming that the government has failed to “demonstrate[] a sufficiently important interest” in such limits.  This claim ignores the fact that the Supreme Court hasalready found that the aggregate limits were supported by the key governmental interest in preventing political corruption.  When approving the predecessor aggregate limit in its 1976 decision in Buckley v. Valeo, the Court held that aggregate limits prevent “evasion of the [base] contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to [their preferred] candidate, or huge contributions to the candidate’s political party.”

Mr. Smith next feigns ignorance of the ways that big donors can circumvent the contribution limits in the manner articulated by the Buckley Court, claiming that “there is no evidence” that donors have devised schemes to evade the base contribution limits by steering unearmarked contributions through intermediaries to support their favored candidates.   Others have also questioned whether the aggregate limits are justified as an anti-circumvention measure, suggesting that the government’s case in McCutcheon may instead rely on a “form of corruption more sweeping in conception than the quid pro quo corruption that the Court has given Congress constitutional latitude to address.”

This stance requires its advocates to simply close their eyes to circumvention schemes that are already up and running.  For instance, Mr. Smith, as a former FEC commissioner, is surely aware of the development of “joint fundraising committees.”  These joint ventures, often consisting of a candidate working with multiple party committees, allow donors to write checks equaling the total amount that they could legally contribute to all of the participants in the fundraising effort.  Each participating committee can then use its “cut” of the proceeds to support a single beneficiary—usually the candidate headlining the effort—making joint fundraising a tried-and-true method for circumventing the base limits.  Both President Obama and Governor Romney used joint fundraising committees in the 2012 election—and given that each candidate raised over $400 million in this manner, it is hardly a technique that escapes notice.  Curbed by the current aggregate limits, donors in 2012 could give approximately $70,000 a pop to such committees.  But absent the aggregate limits, a single donor would be able to give over $1 million to a joint fundraising committee in an election cycle, at the request of a headlining candidate, knowing full well that the total amount would be used by all participating committees to support that candidate.  The corruptive potential of this type of giving thus does not rely on any particularly sweeping or novel theories of corruption; rather, it is circumvention of a size and scope that can only be described as legalized bribery.

Finally, Mr. Smith suggests that there were no restrictions on contributions to candidates and political parties until the 1970’s, insinuating that contribution limits are a recent overreaction to an unfounded fear of political corruption.  This is incorrect.  Federal restrictions on corporate contributions have been on the books since the 1907 Tillman Act, and certain individual limits were passed in the 1940 amendments to the Hatch Act.  While these limits were hardly as effective as campaign reformers may have wished, they reflect the longstanding, common-sense insight that unchecked political giving is an experiment that always ends badly.

Only willful blindness can explain why Mr. Smith and other critics of campaign finance laws fail to acknowledge the likely real-world consequences of invalidating the aggregate limits.  It may be that they are willing to bear these consequences—however damaging—in exchange for the “freedom” of being able to make virtually “unfettered” campaign contributions to federal candidates.  Hopefully, however, the Supreme Court at least will head into oral argument in the McCutcheon case with open eyes and a broader understanding of the purpose and effect of the aggregate limits.