Replying to a posting here, David Gans has responded with a confident defense of the brief he co-authored on behalf of Larry Lessig in the McCutcheon case. On the question of whether the aggregate limit is a contribution or expenditure limit, he has no doubt: it is an “easy” one, he writes. But how easy is it? The application has been uncertain from the beginning. A prime example is the limit on a candidate’s personal spending, struck down by the Buckley Court, which shows how a limit, like the aggregate limit, can straddle the contribution-expenditure line. The Court in Buckley described the candidate spending limit as an “expenditure limit,” after the Court of Appeals had reached a different conclusion. Buckley v. Valeo, 519 F.2d 821, 854 (1975). One could say that the Supreme Court then cleared things up.Buckley v. Valeo, 424 U.S. 1, 53 (1976) (“The Court of Appeals evidently considered the personal funds expenditure … as a contribution rather than expenditure.”) But it didn’t.
For in considering this very type of expenditure (personal spending by candidates) it becomes quickly clear that the Buckley jurisprudence could not offer, and therefore could not rest on, a consistently useful, manageable distinction between contributions and expenditures. A candidate may give her own campaign unlimited contributions, which are deposited, like all other contributions, in her campaign bank accounts. Certainly this giving looks like a contribution. And even if a candidate finances activities in support of her campaign without running the money through her campaign accounts, the spending, because it is “coordinated” with the campaign, is still a contribution. And all such candidate spending is coordinated by law: candidates cannot make independent expenditures on their own behalf.
The Court in Buckley judged that Congress could not limit these contributions for this reason: the candidate could not corrupt herself, and the goal of preventing corruption was at any rate best served by having personal funds replace those of interested givers. It might be a particular type of contribution, not at all corruptive, but it is no less a contribution, because it is (a) a contribution by definition, given for the purpose of influencing a federal election and (b) not an independent expenditure, because candidates cannot spend independently of their own campaigns.