[EL] Danielczyk/McCutcheon update

Fri Feb 15 12:58:32 PST 2013

Yes, *McCutcheon* is "intriguing" on that score, but do not forget: The
Court can give Mr. McCutcheon all of the relief he seeks without disturbing
*Buckley* at all.

With limits on contributions to PACs, enacted since *Buckley,* and the
anti-proliferation provisions for PACs (known today as the "affiliation"
provisions of campaign law, which say that PACs established by the same
entity all share a contribution limit, also enacted since *Buckley),* the
existing aggregate limits do nothing to prevent the circumvention of base
contribution limits -- either the base contribution limits to party
committees ($32,400) or the base contribution limit to candidates
themselves ($2,600).

Preventing the circumvention of base contribution limits was the rationale
in *Buckley* for upholding the overall (aka aggregate) $25,000 limit
originally. With circumvention having been cured by the 1976 Amendments to
Federal campaign law, which were, I mention again, enacted after the *
Buckley* opinion handed down earlier the same year, the only possible
avenue of circumvention is the $2,000 in "support" that one candidate may
provide another. But circumvention by an individual contributor through
that avenue is already cured by the prohibition on earmarking.

Therefore, both aggregate limits -- the aggregate limit on amounts an
individual may contribute to PACs and party committees (at 2 USC
441a(a)(3)(B)), and the aggregate limit on amounts an individual may
contribute to candidates (at 2 USC 441a(a)(3)(A)) -- should be struck down
today on the basis of *Buckley, *not despite it.

The aggregate limits do nothing to prevent circumvention, and thus nothing
to prevent corruption.

What interest do these limits serve now that the 1976 Amendments are in
place? A leveling-the-playing-field interest or anti-distortion. We all
know how that interest has fared the past forty years, and particularly the
last several.

We'll see... I'm as curious as anybody,

Steve

On Fri, Feb 15, 2013 at 3:16 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  If the Supreme Court Agrees to Hear the Two Pending Campaign Finance
> Cases… <http://electionlawblog.org/?p=47328>
> Posted on February 15, 2013 10:54 am <http://electionlawblog.org/?p=47328>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> the order won’t come<http://www.scotusblog.com/2013/02/todays-orders-no-grants-yet/>before Tuesday at 9:30 am.
>
> If I had to make a prediction, I’d predict that the Court takes theMcCutcheon
> <http://electionlawblog.org/?s=mccutcheon>case involving the aggregate
> contribution limit but not the Danielczyk
> <http://electionlawblog.org/?s=danielczyk>case, about the
> constitutionality of the ban on direct corporate contributions to
> candidates. McCutcheon is coming up on appeal and not cert, and a decision
> to not hear the case counts as a ruling on the merits. Also, there’s no
> circuit split on the corporate contribution case, and there’s a strong
> anti-circumvention argument against allowing corporate contributions: an
> individual could easily evade the individual contribution limits through
> setting up an unlimited number of corporations to make additional
> contributions.
>
> How confident am I in this prediction about what the Court will do? Not
> very.
>
> *UPDATE:* Lawrence Hurley reports
> <https://twitter.com/lawrencehurley/status/302508483088117760>that
> Danielczyk has been taken off calendar, meaning we won’t get a ruling on
> the cert petition one way or the other on Tuesday.  Not clear what this
> means—there are all kinds of reasons why cases get relisted.  But here’s
> one intriguing possibility: the Court might decide to hear (note probable
> jurisdiction in) *McCutcheon*, and it could hold *Danielczyk* until that
> case is resolved—both cases involve separate issues concerning campaign
> contributions.
>
> *McCutcheon *is especially intriguing because it may be the first time
> that the Court, despite all the twists and turns of campaign finance law,
> could actually overrule part of the key 1976 *Buckley v. Valeo *case.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D47328&title=If%20the%20Supreme%20Court%20Agrees%20to%20Hear%20the%20Two%20Pending%20Campaign%20Finance%20Cases%E2%80%A6&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29> | Comments Off |
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
>
>
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>

-- 
Stephen M. Hoersting
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