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Next Citizens United? McCutcheon Supreme Court Case Targets Campaign Contribution Limits

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WASHINGTON -- The next big campaign finance case to go before the Supreme Court began in February 2012 in the grand ballroom at the Marriott Wardman Park hotel during the "Ronald Reagan Banquet" at the Conservative Political Action Conference.

Alabama electrical engineer and budding political donor Shaun McCutcheon broached a problem in conversation with conservative election lawyer Dan Backer, who one day earlier had led a CPAC panel on rolling back campaign finance laws in which he predicted that campaign contribution limits would soon rise.

McCutcheon had recently learned there were overall federal campaign contribution limits on what a single donor could give during a two-year election cycle. He voiced his annoyance to Backer and wondered if he could just ignore the aggregate limits -- something that a few dozen donors wound up doing, whether deliberately or inadvertently, in the 2012 election.

"He could tell I didn't like 'em, so he said we could challenge and it would go all the way to the Supreme Court," McCutcheon recalled in an interview with The Huffington Post. "I didn't really believe him."

A little more than a year later, McCutcheon, now joined by the Republican National Committee, is bringing the biggest campaign finance case before the Supreme Court since the controversial 2010 Citizens United decision. If the justices rule in their next term to toss the overall limits, it would mark the first time the Supreme Court had found a federal contribution limit unconstitutional and would open the door for even more money to flood the political system.

It would also be a major victory for counter-reformers, who have racked up a string of wins rolling back campaign finance regulation ever since Justice Samuel Alito replaced the more campaign regs-friendly Sandra Day O'Connor. And it would be a major blow to the campaign finance regime crafted in the 1970s following a string of corruption scandals culminating in the abuses revealed in the Watergate investigation.

For the 2013-2014 election cycle, Federal Election Commission rules state that a donor can give no more than $123,200 to all political committees with two sub-limits of $48,600 to candidates and $74,600 to political parties and political action committees. Without these overall caps, a single donor supporting one political party could theoretically give more than $5 million in individually limited contributions to every House candidate, every Senate candidate, every state party committee, every national party committee and every leadership PAC.

The case of McCutcheon v. FEC is being managed by a team of attorneys who have made careers out of working a long game to roll back campaign finance laws, including lead counsel Jim Bopp, the first lawyer on the Citizens United case, and Backer and Stephen Hoersting. The challengers argue that the aggregate limits are an unconstitutional burden on free speech and do not serve the purpose of reducing quid pro quo corruption or the appearance thereof.

"This is a case about how to spend your money how you choose, and it's a very important First Amendment case about freedom of speech," McCutcheon said. "We should be able to support as many candidates as we want. There's no reason to limit the number of candidates or committees."

Supporters of stronger campaign finance oversight disagree strongly. They say that campaign contribution limits being up for debate is a sign of how successful the counter-reformers have already been and how unfriendly the current Supreme Court is to campaign finance regulation.

"The fact that they are setting their sights on even this most basic feature of campaign regulation just shows how far the conversation has shifted on campaign finance," said Brenda Wright, vice president for legal strategies at Demos and the lead author of an amicus brief opposing McCutcheon. "And it's really important for the court not to take that next step. The court really needs to put a stop to the damage that's been done to our campaign finance regulations."

In a string of amici briefs filed with the Supreme Court on July 25, campaign reform advocates argue that the elimination of the aggregate limits would open the door for candidates to solicit checks of over $1 million through joint fundraising committees and undermine the individual contribution limits by allowing donations to be shifted among an unlimited number of candidates and PACs.

"This is a not very thinly disguised first step to try to get an absolute anything-goes, no-limits regime on campaign contributions," said Charles Fried, a former solicitor general under President Ronald Reagan and the author of an amicus brief submitted by Americans for Campaign Reform.

McCutcheon, however, denies that he wants to change the direct contribution limits, stating, "This is not about base limits. This is about aggregate limits."

Yet a ruling undoing overall contribution limits could, in fact, undermine the legal standing of individual contribution limits in future court challenges. University of California-Irvine election law professor Rick Hasen explained on his Election Law Blog, "It is possible in this case, for example, that the conservative five Justices ... set out a general standard for reviewing contribution limits which makes them harder to sustain against constitutional challenge."

Further, in the most radical and unlikely possibility, the court could decide that the case requires a ruling on the underlying question of the constitutionality of all contribution limits -- much as it did with independent spending in the Citizens United ruling -- and then find all such limits to be unconstitutional.

In the past, the Supreme Court has supported the overall limits as an extension of the direct contribution limits. The court in the landmark 1976 Buckley v. Valeo decision found that the overall limits "prevent evasion of the [direct] 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 that candidate, or huge contributions to the candidate's political party."

The court has also found the acceptance or solicitation of "huge contributions" by lawmakers to be a legitimate concern, creating the appearance of corruption, if not leading to actual corruption, as in the Nixon White House.

In their brief before the court, however, McCutcheon and the RNC argue that the system of contribution caps supported in Buckley and subsequent decisions has been made irrelevant by the Citizens United ruling, which opened the door to unlimited independent spending by corporations, unions and, through a lower court ruling, individuals.

The unlimited spending allowed by Citizens United does raise the question of whether overall limits -- or even individual contribution limits -- matter when a donor can simply give unlimited amounts to support or oppose a candidate through a super PAC or a non-disclosing nonprofit. This reasoning has been echoed in a handful of state capitals where lawmakers have passed legislation since the 2010 decision to raise contribution limits in order to help candidates remain competitive with the rising tide of independent spending.

After pondering and rejecting this argument, D.C. Circuit Judge Janice Rogers Brown, writing for a three-judge panel in the lower court, predicted where the arguments made by McCutcheon and the RNC would be decided. "Plaintiffs raise the troubling possibility that Citizens United undermined the entire contribution limits scheme, but whether that case will ultimately spur a new evaluation of Buckley is a question for the Supreme Court, not us," she wrote.

The Supreme Court may ultimately decide to strike down or uphold the overall limits, but there is also a middle path. The court could find the overall limits to be generally constitutional, but their level to be unconstitutionally low. This would require Congress to set new caps that meet with whatever requirements the court decides are appropriate.

Oral arguments in McCutcheon v. FEC are scheduled for Oct. 8, with a ruling likely to arrive just in time for a potential new explosion of money in the 2014 midterms.

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