[EL] McCutcheon

[Smith, Brad]

I think Doug's framing is quite good: possible vs. plausible.



I know of no joint fundraising committee that has ever hit the current legal maximum, so it's hard to figure out why we should expect them now (though Roberts also notes that it's hard to figure out why we should fear them anyway, even if it were plausible). Nor do we see this as a problem in the states.



Generally speaking, there are some observers who scream the sky is falling every time an acorn hits them on the head. Repeatedly their worst predictions fail to come true.



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 [law-election-bounces at department-lists.uci.edu] on behalf of Doug Spencer [dougspencer at gmail.com]
Sent: Wednesday, April 02, 2014 4:46 PM
To: Election Law
Subject: [EL] McCutcheon

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<http://www.dougspencer.org/>
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