Public Citizen attempts to make the case that the Supreme Court’s pending decision inMcCutcheon could, if wrongly decided, unleash a flood of money with the probable effect of corrupting the political process. The argument is the one heard before in briefs and in oral argument about joint fundraising committees. A donor who gives to a joint fundraising committee can write a check for millions, to be apportioned within the limits among all the joint fundraising participants. Public Citizen warns against “naïveté”: the more “practical” view it urges is that the officeholder who solicits for the joint fundraising committee risks corruptive indebtedness to the donor. This is a plausible policy argument, but not clearly one best directed to the Supreme Court or sufficient to carry the constitutional position Public Citizen is advocating. Public Citizen is relying on a hypothetical (which is another way of saying that no record exists to suggest that it is realistic) and on a particular understanding of corruption and fundraising that does not capture the complexities of Congress’ treatment of the issue in reform measures over the years.
Three times in recent years, Congress considered the corruptive effects of large sums raised from an individual donor who is otherwise limited in giving to a specific campaign or political committee. With one exception, legislators chose to give officeholders and candidates considerable leeway to ask for substantial amounts—or without limit. In short, in judging the threat of corruption, Congress has not viewed in the same way the amounts given and the amounts raised.
In 2002, when Congress was fully aware of joint fundraising, it banned officeholder solicitations of “soft” money—money from raised from corporations or unions, or outside the federal contribution limits and reporting requirements. But Congress did not include joint fundraising within the soft money fundraising prohibition. Money raised for a joint fundraising committee is not “soft” money: the amount solicited falls within federal legal limits, including the aggregate limits. In fact, after McCain-Feingold was passed, the Federal Election Commission amended the joint fundraising regulations to clarify that the ban on soliciting soft money did not restrict the ability of officeholders to raise large sums for all the participants, combined, in a joint fundraising effort. 11 C.F.R. 102.17(c)(5).
As a result, a candidate or officeholder could continue to raise over $100,000 from an individual every two years, or roughly $250,000 from a married couple, through a joint fundraising committee. And not only did McCain-Feingold preserve officeholders’ and candidates’ ability to solicit large sums through joint fundraising, it increased the contribution limits and, therefore, the total amounts that could be solicited from individuals through a joint fundraising arrangement.