[EL] McCutcheon argument

Mon Oct 7 08:45:25 PDT 2013

In other words, you are also not aware of any committees in 2012 that went to the current aggregate limit, using the formula that CLC says would be used to allow multi-million contributions, correct?

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Kurt Walters [kwalters at campaignmoney.org]
Sent: Monday, October 07, 2013 11:38 AM
To: Smith, Brad; law-election at uci.edu
Subject: Re: [EL] McCutcheon argument

I'll note that there were at least two joint fundraising committees in 2012 that solicited and received contributions of $75,800, hitting the aggregate cap for party/PAC contributions ($70,800) and also collecting $5,000 for a presidential candidate committee: Romney Victory and Obama Victory Fund.

As these committees were already at the limit, it's tough to believe that 2016 presidential JFCs would not solicit much larger contributions, quite plausibly up to the nearly $1.2 million that would be allowed to state/national party committees in the absence of the aggregate cap (see here: www.democracy21.org/wp-content/uploads/2013/09/McCutcheon-Democracy-21-Fact-Sheet.pdf).

----
Kurt Walters
Research & Policy Analyst
Public Campaign Action Fund
(202) 640-5598
kwalters at campaignmoney.org

From: <Smith>, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
Date: Monday, October 7, 2013 11:25 AM
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at UCI.EDU<mailto:law-election at UCI.EDU>>
Subject: [EL] McCutcheon argument

"3. Does the argument of the Campaign Legal Center <http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-536_appellee_amcu_clc-etal.authcheckdam.pdf> and others about the danger of corruption from joint fundraising committees gain traction?  I spelled this out in the Slate piece. The upshot is that federal officeholders will be able to collect multimillion dollar checks from big donors and then distribute the money to other candidates, parties and committees."

It should be noted that joint fundraisers don't work the way that this sentence might imply. The solicitor(s) do not take in the check and then divvy up according to their wishes. In a joint fundraiser, the recipients of contributions are determined by the donor. To the extent the donor doesn't specify, that will be because the committees in the joint fundraiser have agreed on a default order in which contributions are attributed.

It is worth noting that I do not believe that there was a single joint fundraising committee in 2012 (or, I don't think, any other year) that raised the maximum allowed even under the existing aggregate cap. The various administrative and transaction costs are just too high. The CLC scenario is a bit like predicating defense policy on the possibility that every country in the world might  attack the U.S. all at once, or police staffing on the theory that every dissatisfied group in America would decide to protest on the mall on the same day.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Monday, October 07, 2013 11:09 AM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: [EL] more news 10/7/13

Three Things to Watch for in Tomorrow’s Campaign Finance Oral Argument at the Supreme Court<http://electionlawblog.org/?p=55783>
Posted on October 7, 2013 8:03 am<http://electionlawblog.org/?p=55783>by Rick Hasen<http://electionlawblog.org/?author=3>

Tomorrow the Supreme Court hears argument in McCutcheon v. Federal Election Commission<http://www.scotusblog.com/case-files/cases/mccutcheon-v-federal-election-commission/>, concerning a First Amendment challenge to various “aggregate” or total limits on the amounts that individuals can give to federal candidates, parties, and certain committees.  My Slate piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/campaign_finance_at_the_supreme_court_is_mccutcheon_v_fec_the_next_citizens.html> lays out the issues. The Court does not have live audio or video of the arguments. Tomorrow there will be early reports from SCOTUSBlog<http://scotusblog.com> and the wire services and then more extended analysis from the excellent Supreme Court press corp.  A transcript will issue in the afternoon, and the audio should be released on Friday (though I don’t know if that is affected by the shutdown).

Here are the three top things I’ll be looking for tomorrow, to know how big this ruling is likely to be.

1. Do Chief Justice Roberts and Justice Alito believe that the Supreme Court’s 1976 case of Buckley v. Valeo is fairly in play in this case?  As I explained in both the Slate piece and my New York Times  “Room for Debate” contribution<http://www.nytimes.com/roomfordebate/2013/10/06/why-limit-political-donations/limiting-contributions-to-candidates-deters-corruption>, the biggest question in the case is whether the Court is going to jettison its rule, since 1976, applying a relatively lax level of scrutiny to reviewing contribution limits. This lax level of scrutiny has allowed most contribution limits to survive constitutional challenge. But Sen. McConnell and others have argued that Buckley should be overruled on this point.  There are reasons to think that both Roberts and Alito have sympathy with the underlying argument to make the scrutiny stricter (meaning many contribution limits could be found constitutional).  But CJ Roberts has indicated he likes to move slowly in changing constitutional doctrine, and Justice Alito has been very careful to say he does not like overturning old precedent without full briefing and compelling reasons to do so.  If these justices can reach a result which overturns the aggregate limits without upsetting Buckley, they may be tempted to do so.

2. Is the Court ready to apply its very narrow definition of corruption (to be almost as narrow as bribery) which it used in the spending limit context in Citizens United to the contribution limit context?  There could be great temptation on CJ Roberts and J. Alito’s part to do so.  It would have almost the same effect as overturning Buckley (meaning most contribution limits would be in constitutional trouble) without the controversial headline that the Court is overruling the settled precedent of Buckley.

3. Does the argument of the Campaign Legal Center <http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-536_appellee_amcu_clc-etal.authcheckdam.pdf> and others about the danger of corruption from joint fundraising committees gain traction?  I spelled this out in the Slate piece. The upshot is that federal officeholders will be able to collect multimillion dollar checks from big donors and then distribute the money to other candidates, parties and committees.  There’s a chance Justice Kennedy, who saw a corruption danger in the McConnell case stemming from politicians collecting large soft money donations, also seeing a big corruption danger here.  J. Kennedy is a longer shot than CJ Roberts or Alito, but don’t count him out.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55783&title=Three%20Things%20to%20Watch%20for%20in%20Tomorrow%E2%80%99s%20Campaign%20Finance%20Oral%20Argument%20at%20the%20Supreme%20Court&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Court Won’t Hear Scruggs Appeal”<http://electionlawblog.org/?p=55781>
Posted on October 7, 2013 7:27 am<http://electionlawblog.org/?p=55781>by Rick Hasen<http://electionlawblog.org/?author=3>

Another cert. denia<http://www.nytimes.com/aponline/2013/10/07/us/politics/ap-us-supreme-court-scruggs-appeal.html?ref=politics>l in a bribery-related case.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55781&title=%E2%80%9CCourt%20Won%E2%80%99t%20Hear%20Scruggs%20Appeal%E2%80%9D&description=>
Posted in bribery<http://electionlawblog.org/?cat=54>, Supreme Court<http://electionlawblog.org/?cat=29>
Adam Winkler on the Coming “Kagan Court”<http://electionlawblog.org/?p=55779>
Posted on October 7, 2013 7:26 am<http://electionlawblog.org/?p=55779>by Rick Hasen<http://electionlawblog.org/?author=3>

Via Slate<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/elena_kagan_is_the_most_influential_liberal_justice.html>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55779&title=Adam%20Winkler%20on%20the%20Coming%20%E2%80%9CKagan%20Court%E2%80%9D&description=>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>
Nina Totenberg on New SCOTUS Term<http://electionlawblog.org/?p=55777>
Posted on October 7, 2013 7:25 am<http://electionlawblog.org/?p=55777>by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://www.npr.org/2013/10/07/229225889/despite-shutdown-supreme-court-opens-its-doors-for-new-term>, at NPR.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55777&title=Nina%20Totenberg%20on%20New%20SCOTUS%20Term&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
Jess Bravin on New SCOTUS Term<http://electionlawblog.org/?p=55775>
Posted on October 7, 2013 7:24 am<http://electionlawblog.org/?p=55775>by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://online.wsj.com/article_email/SB10001424052702303492504579115771522857410-lMyQjAxMTAzMDAwNjEwNDYyWj.html>, at WSJ.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55775&title=Jess%20Bravin%20on%20New%20SCOTUS%20Term&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Fork In The Road: Kansas To Implement Two-Track Voter List?”<http://electionlawblog.org/?p=55773>
Posted on October 7, 2013 7:23 am<http://electionlawblog.org/?p=55773>by Rick Hasen<http://electionlawblog.org/?author=3>

A ChapinBlog<http://blog.lib.umn.edu/cspg/electionacademy/2013/10/fork_in_the_road_kansas_to_imp.php>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55773&title=%E2%80%9CFork%20In%20The%20Road%3A%20Kansas%20To%20Implement%20Two-Track%20Voter%20List%3F%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter registration<http://electionlawblog.org/?cat=37>
Adam Liptak on the Supreme Court’s “Deep Docket”<http://electionlawblog.org/?p=55770>
Posted on October 7, 2013 7:22 am<http://electionlawblog.org/?p=55770>by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://www.nytimes.com/2013/10/07/us/politics/supreme-court-has-deep-docket-in-its-new-term.html>, at NYT.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55770&title=Adam%20Liptak%20on%20the%20Supreme%20Court%E2%80%99s%20%E2%80%9CDeep%20Docket%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
Chris Geidner on the 11 Big Cases of the New SCOTUS Term<http://electionlawblog.org/?p=55768>
Posted on October 7, 2013 7:19 am<http://electionlawblog.org/?p=55768>by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<http://www.buzzfeed.com/chrisgeidner/13-cases-at-the-supreme-court-that-could-change-the-country>

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55768&title=Chris%20Geidner%20on%20the%2011%20Big%20Cases%20of%20the%20New%20SCOTUS%20Term&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
Zack Roth on CJ Roberts on McCutcheon<http://electionlawblog.org/?p=55766>
Posted on October 7, 2013 7:17 am<http://electionlawblog.org/?p=55766>by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://tv.msnbc.com/2013/10/07/supreme-court-could-open-door-to-yet-more-money-in-politics/>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55766&title=Zack%20Roth%20on%20CJ%20Roberts%20on%20McCutcheon&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
More Bauer on McCutcheon<http://electionlawblog.org/?p=55764>
Posted on October 7, 2013 7:16 am<http://electionlawblog.org/?p=55764>by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://www.moresoftmoneyhardlaw.com/2013/10/on-the-eve-of-argument-the-trouble-with-the-courts-contributions-jurisprudence/>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55764&title=More%20Bauer%20on%20McCutcheon&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
Ruth Marcus on McCutcheon<http://electionlawblog.org/?p=55762>
Posted on October 7, 2013 7:15 am<http://electionlawblog.org/?p=55762>by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<http://www.washingtonpost.com/opinions/ruth-marcus-eroding-the-checks-on-campaign-contributions/2013/10/06/dc158c6e-2eb9-11e3-bbed-a8a60c601153_story.html>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
Supreme Court Declines to Hear Kevin Ring Lobbyist Bribery Case, Tied to Abramoff Scandal<http://electionlawblog.org/?p=55760>
Posted on October 7, 2013 7:14 am<http://electionlawblog.org/?p=55760>by Rick Hasen<http://electionlawblog.org/?author=3>

The order list is here<http://www.supremecourt.gov/orders/courtorders/100713zor_5436.pdf>.

Background on the issues in Ring here<http://electionlawblog.org/?p=51836>, and in this LA Times piece<http://www.latimes.com/nation/la-na-court-lobbyist-20130929,0,1284244.story>.

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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
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http://electionlawblog.org
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