Ray La Raja made some interesting points in his post last week about McCutcheon v. Federal Election Commission. I’m not as sanguine as he is about this case, and I think each of his points deserves a little more consideration. First, Ray argues that the current direct contribution limit for people giving to candidates ($2,600 per election) is very low. He goes so far as to note that $2,600 is about 0.18% of the $1.4 million or so the typical House winner spends in a campaign. There are a couple of nits to pick with this description. First, the $2,600 limit is, of course, a “per election” limit, and virtually every candidate for federal office participates in at least two elections (a primary and a general) in each cycle. So, the proper way to describe this boundary is that the existing limit is effectively at least $5,200 per candidate. That means that just under 300 people are able to fully fund the typical House winner under existing limits without a penny from PACs or parties or other campaigns — not exactly requiring a groundswell of support.
But this also means that the number of candidates to whom one could give the maximum under current rules is really only nine, not the 18 Ray mentions. This was clearly a central concern of Supreme Court Chief Justice John Roberts during oral arguments, and it does seem like an awfully small number. It is, however, three times the number of actual Congressional representatives that any single donor has. And it ignores the ability of those same donors to give to Leadership PACs created by the same candidates and/or others (we even see these created by challengers or open-seat candidates before they win these days), along with national and state party committees that support many candidates and PACs organized around issues or ideological positions who can also receive contributions from a donor who has reached the nine-candidate limit. So, the existing system allows for pretty direct support of many candidates and coalitions (e.g. parties).
Ray also discusses the justices’ concern about whether the specific contribution limits could be circumvented if the overall limit were to disappear. Ray and others are skeptical of byzantine schemes one might weave, such as the rise of PACs focused on a small group of candidates who could each take $5,000 from individuals who really want to support that same small group. This is no doubt complicated, and there are some (actually pretty modest) restrictions on how it might be accomplished. But those of us who have been around campaign finance for a few years have seen plenty of byzantine schemes that seemed too clever by half but still were used. I would offer as examples the bizarre set of state Republican Party committees that participated in the joint fundraising effort for Mitt Romney in 2012 (trying to hide where the money would really go or just find faithful servants who would make the unlimited transfers to other states as the campaign wished?), and the use of the reporting schedule to game disclosure for some groups who either register or change their reporting regime from quarterly to monthly, or vice versa, to delay revealing their activity. (Neither of these seems very worthwhile in the greater scheme of things, but both felt right to some strategists looking for any advantage possible – even if it was more imagined than real.)