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Eliminating Contribution Limits Would Fuel Corruption, Public Citizen, Others Tell U.S. Supreme Court

Former Solicitor General Seth Waxman and Public Citizen Attorney Scott Nelson Lead Legal Team on Friend-of-the-Court Brief in McCutcheon v. Federal Election Commission

July 26, 2013

In McCutcheon v. Federal Election Commission, the U.S. Supreme Court will consider whether to strike down longstanding provisions of the Federal Election Campaign Act that impose an “aggregate limit” of approximately $125,000 on the amounts individuals can contribute during an election cycle to federal candidates, political parties and other political committees. The elimination of that cap would allow candidates and party officials to solicit million-dollar-plus contributions to be shared among the major parties’ various candidates and committees. Despite the Supreme Court’s repeated holdings that limits on such huge contributions are constitutional because they are a bulwark against corruption—the exchange of political favors for money—the Republican National Committee (RNC) and one of its large donors argue in the case that the limits should be wiped away because the resulting contributions will not be “huge” enough to cause concern.

Former U.S. Solicitor General Seth Waxman and Public Citizen attorney Scott Nelson lead a team of attorneys that have submitted a friend-of-the-court brief on behalf of U.S Representatives Chris Van Hollen (D-Md.) and David Price (D-N.C.) supporting the constitutionality of the existing limits and opposing the RNC’s effort to eliminate it. The legal team also includes Fred Wertheimer of Democracy 21, Waxman’s colleagues Randy Moss, Roger Witten and Weili Shaw of the law firm WilmerHale, and Don Simon of the law firm Sonosky, Chambers, Sachse, Endreson & Perry. Van Hollen and Price are leading congressional proponents of campaign finance reform. The brief is available at http://www.citizen.org/documents/mccutcheon-v-fec-brief.pdf.

As the brief explains:

This case starkly poses the question whether the competition for the massive individual contributions that would be permitted without aggregate contribution limits would threaten to create the reality or appearance of corruption. This Court’s decisions leave no doubt that the answer is yes. Striking down these limits would create obvious possibilities for even the most blatant forms of corruption: solicitations for hundreds of thousands or millions of dollars, creating the opportunity for transactions exchanging contributions for anticipated political favors from officeholders.

The brief points out that the Supreme Court’s decisions have never applied strict First Amendment scrutiny to campaign contribution limitations and that the court has upheld every federal contribution limit it has ever reviewed, including aggregate limits, as a constitutional means of preventing corruption or its appearance.

The brief goes on to describe how, in the absence of aggregate limits, federal officeholders, candidates and the major political parties could work together through “joint fundraising committees” to solicit donations substantially exceeding $1 million from individual donors in a single two-year election cycle. Such joint fundraising committees are already a staple of the political scene, having been used by both President Barack Obama and GOP candidate Mitt Romney in the 2012 elections, but the existing aggregate contribution limits cap the amounts they can collect. If those laws were struck down, candidates and parties would aggressively seek ever-larger contributions, and the donors would predictably expect special treatment in return.

The brief concludes: “Permitting the parties and their candidates to solicit and receive contributions of millions of dollars from individual donors would again foster the appearance that our officeholders and our government are for sale. … This Court must not countenance, let alone bring about, that result.”

The case will be argued in the Supreme Court on October 8, 2013, and is likely to be decided sometime before the end of June 2014.

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