I attended today's U.S. Supreme Court oral argument in the case challenging contribution limits. If the Justices rewrite campaign finance law by striking down the contribution limits, checks of up to $2.95 million each from wealthy contributors will corrupt democracy.
During the 2012 election, Alabama businessman Shaun McCutcheon gave a total of over $113,000 spread out to various candidates, party committees, and PACs. Federal law prohibits McCutcheon (or any individual) from contributing over $2600 to any one candidate (per election), or over $32,400 to any one party committee (e.g., the National Republican Senatorial Committee).
Federal law also has an aggregate limit--individuals cannot contribute a total of over $123,200 to all federal candidates, parties, and PACs. In the case before the Supreme Court, McCutcheon argues that this aggregate $123,000 limit violates his First Amendment rights.
The problem, however, is that striking down the $123,200 aggregate contribution limit would open the door to politicians soliciting checks of up to $2.95 million each. This would lead to massive quid pro quo corruption.
In addition to teaching campaign finance law, I raised over $3 million as a member of the Obama National Finance Committee. In 2007, we started out collecting maximum checks of $2300, and this was the focus of our efforts for most of the 2008 campaign. In 2011, however, we initially collected individual checks of up to $35,800 each, which eventually rose to $75,800 (as it did for the Romney campaign). Federal law allowed us to collect a single $75,800 check made out to a joint fundraising committee--$2500 of which was allocated to the Obama campaign primary election, $2500 to the Obama campaign general election, $30,800 to the Democratic National Committee, and $40,000 to state parties.
The only thing that prevented us from collecting bigger checks was the aggregate contribution limit.
If the U.S. Supreme Court strikes down the $123,200 aggregate contribution limit, an elected official will be able to solicit and collect a single check of up to $2.95 million--which would then be allocated among various party committees (the national, senate, and congressional committees) and federal candidates. (The elected official will be able to collect two checks from one individual totaling $3.5 million over the course of a year and a day).
The Court has prohibited equality as a rationale to limit contributions, and thus my legal complaint is not the inequality of a single $2.95 million contribution. Instead, the problem with elected officials soliciting $2.95 million checks is quid pro quo corruption--cash for favors.
When a $2500 donor becomes unreasonable, it is relatively easy for a fundraiser to push back. By raising money from lots of different sources, it is not hard to resist one of hundreds of donors who are giving $2500. When a $35,800 contributor is unreasonable, many fundraisers pause, and think through how to push back in a considerate, polite, and gracious manner. (That $35,800 contributor likely has friends who can also contribute $35,800).
Pushing back on a $2.95 million contributor, however, would be much more difficult. In short, $2.95 million contributions would lead to a great deal of quid pro quo corruption. This corruption explains why Congress reformed campaign finance laws after Watergate, and later banned multi-million dollar soft money contributions.
A member of Congress can be corrupted not only by a contribution directly to the member's campaign account--but also by a $2.95 million contribution to a joint fundraising committee. House and Senate members have responsibilities to raise a particular amount for their party committees (e.g., the Democratic Congressional Campaign Committee). If a House and Senate member can fulfill that obligation by collecting one $2.95 million check to a joint fundraising committee, the member will be relieved of the pressure of fundraising, and likely will feel indebted to the $2.95 million contributor. The chance of quid pro quo corruption is much higher than a $20,000 contribution directly into the member's own campaign account (which is currently prohibited due to concerns about corruption).
This is not a "wild hypothetical" as Justice Alito suggested--but political reality. Solicitor General Don Verrelli rightly observed during oral argument that soliciting these multi-million dollar contributions would make Congressional leaders--who have the power to block or expedite legislation--much more susceptible to corruption. As Verrelli emphasized, "aggregate limits combat corruption."
The U.S. Supreme Court should uphold the $123,200 aggregate contribution limit. Judicial rewriting of campaign finance laws to abolish the limit would open the door to corruption.
Spencer Overton is a Professor of Law at The George Washington University Law School, where he teaches campaign finance law. He is also a Senior Fellow at Demos, and he served on the Obama National Finance Committee during the 2008 and 2012 campaigns.