[EL] McCutcheon

[Doug Spencer]

I have two questions for the list about today's "Battle of Competing
Hypotheticals" also known as the *McCutcheon* opinion:

(1) Despite the
"civility<http://www.scotusblog.com/2014/04/a-civil-day-on-the-bench-for-opinions-on-the-impolite-world-of-campaign-finance/>"
in today's announcement, Roberts and Breyer are clearly frustrated with
each other. Breyer, channeling his inner Oscar Wilde, even went so far to
say that it's nearly impossible to read the majority opinion without
laughing. But I don't read the majority and dissent as mutually exclusive,
at least on the point of circumvention. Breyer describes what is
*possible*and Roberts argues what is
*plausible*. Can somebody offer some context on this point? Roberts argues
that circumvention is unlikely because of the various anti-earmarking
provisions that have been added over the years. But certainly these
provisions have been added because of actual (or feared) circumvention. For
those with a working knowledge of contribution bundling and earmarking, is
it true as Roberts argues that the 100 PAC scenario (or other of Breyer's
hypos) is "highly implausible"? I'm also curious how many donors have run
up against the aggregate limit in the last decade. This fact is missing
from the opinion and party briefs (I didn't read the amicus briefs), but it
seems like a relevant piece of information, even if it could cut both ways.

(2) In footnote 7, the majority notes that just 8 of the 38 states with
base limits also have an aggregate limit. What is the status of these state
laws? Would state-specific evidence of circumvention be enough to preserve
them? The *Citizens United* experience suggests that it
wouldn't<http://www.washingtonpost.com/blogs/the-fix/post/supreme-courts-montana-decision-strengthens-citizens-united/2012/06/25/gJQA8Vln1V_blog.html>.
But the holding in *McCutcheon* seems to be more fact-oriented than in
*Citizens
United *so perhaps individual state histories and campaign finance regimes
will make a difference.

Thanks for any thoughts.
Doug

-----
*Douglas M. Spencer*
*Associate Professor of Law and Public Policy*
University of Connecticut
65 Elizabeth Street
Hartford, CT 06105
(860) 570-5437
http://www.dougspencer.org
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