[EL] McCutcheon

[Tyler Culberson]

"I'm also curious how many donors have run up against the aggregate limit
in the last decade."

I might check with Paul Blumenthal who had written an article in Huffington
Post about donors crossing the biennial limit threshold last May in
Huffington Post. I'd also note that this law had not been meaningfully
enforced since 1990, when the FEC actually fined a small number of donors
who exceeded the biennial limits.


On Wed, Apr 2, 2014 at 4:46 PM, Doug Spencer <dougspencer at gmail.com> wrote:

> 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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