The National Law Forum

The Blog of the The National Law Review

GOP Super PAC Men Seek to Overturn Donation Limits: Conservatives Set Sights on Repealing Election-Cycle Contribution Limits to Candidates

An article by Michael Beckel of the Center for Public Integrity was recently published in The National Law Review.  The article discussed Donation Limits from PAC’s:

GOP super PAC men want to make it easier to donate to dozens of candidates

Conservatives set sights on repealing election-cycle contribution limits to candidates

As unlimited contributions flow into super PACs this year, one man is at the center of a new effort to allow people to donate more money, to more candidates, at the national stage.

“I don’t believe government is there to limit us,” Shaun McCutcheon told iWatch News.

McCutcheon is a 44-year-old general contractor in Alabama. He’s the owner, founder and president of Coalmont Electrical Development. He’s a member of the Republican Party who admits he may have a bit of a libertarian streak. And he’s also the treasurer of a super PAC called the “Conservative Action Fund.”

That’s a group that spent more than $43,000 opposing House Financial Services Committee Chairman Spencer Bachus (R-Ala.) in Tuesday’s GOP primary in Alabama, although it has mostly targeted Democrats with its attacks.

In one advertisement it produced last fall, the super PAC accused President Barack Obama of implementing “draconian laws and regulations.” And it aired another adthat featured a “surfing rabbi” and computer-animated versions of Obama, along with New York Democrats Anthony Weiner and David Weprin, dancing in hot dog costumes — all while encouraging voters to support Republican Bob Turner in the special election to replace Weiner after his sexting scandal.

Now McCutcheon is requesting that the FEC repeal the existing biennial limit on how much money individuals can donate to federal candidates.

McCutcheon wants to donate at least $51,900 to multiple federal candidates ahead of the elections this November, spread across more than two dozen conservative politicians, according to documents released by the FEC on Wednesday.

Campaign finance laws, however, currently cap the amount of money individuals can donate to federal candidates at $46,200. (That amount is increased slightly for inflation during odd-numbered years. In 2010, the aggregate limit for donations to candidates during the two-year election cycle was $45,600.)

Federal rules prohibit a person from giving more than $2,500 per candidate per election, with the primary and general election being viewed as separate elections. McCutcheon says he doesn’t want to exceed that amount to any one candidate; he just wants to be able to donate to more candidates than the current cap allows.

Some simple algebra indicates a person would reach the current aggregate limit by giving $2,500 a piece to about 18.5 candidates, or by giving $5,000 a piece to about 9.25 candidates. McCutcheon, according to the request filed with the FEC, wants to donate to 27, all of whom are challengers, with the exceptions of incumbent Reps. Martha Roby (R-Ala.) and Michele Bachmann (R-Minn.), the founder of the House Tea Party Caucus who unsuccessfully ran for the 2012 GOP presidential nomination.

A question of corruption

In his request before the FEC, McCutcheon is represented by attorneys Steve Hoersting, and Dan Backer of the D.C.-based DB Capitol Strategies and Jerad Najvar of the Houston-based Najvar Law Firm.

Hoersting, who co-founded the First Amendment rights-focused Center for Competitive Politics, and Backer are experienced campaign finance litigators. Their successes include 2011’s Carey v. Federal Election Commission federal court ruling, which granted most political action committees the ability receive unlimited contributions to fund independent political advertisements in a segregated bank account, separate from the money they typically collect to dole out donations to candidates.

These men believe that the U.S. Supreme Court’s 2010 Citizens United v. Federal Election Commission decision, which allowed unlimited spending by corporations and unions on political advertisements, provides a “solid” foundation for bringing forward McCutcheon’s request at this moment in time.

“The Supreme Court has been clear: campaign finance laws are constitutional when they prevent the corruption of candidates, and unconstitutional when they constrain some speakers to equalize others,” Hoersting told iWatch News.

“An aggregate limit on how much one individual can give to all candidates,” he continued, “constrains speakers without preventing either any additional corruption of candidates or circumvention of the $2,500 limit that any single candidate may receive.”

But not all campaign finance observers agree.

Paul Ryan, an attorney at the nonpartisan Campaign Legal Center, which favors campaign finance regulations, says the limit reduces the threat of corruption.

Absent that limit, Ryan argues, a wealthy donor, if he or she wanted, could give $2,500 or even $5,000 to all 535 members of Congress. Furthermore, that donor could also write $5,000 checks to each and every challenger to “ensure access” even if the incumbents lose. And if a wealthy donor gave millions of dollars to every candidate and officeholder, “the public would most certainly be left with the reasonable impression that the wealthy donor had all of Congress in [his or her] pocket.”

“This would surely undermine the electorate’s faith in our democracy,” he said.

For his part, McCutcheon has already donated more than $143,000 to federal candidates and political committees, according to an iWatch News analysis of campaign finance filings with the FEC.

He’s only donated $7,500 to federal candidates — $2,500 to Alabama Republican House candidate Scott Beason and $5,000 to Ohio Republican Senate candidate Josh Mandel. The bulk of McCutcheon’s giving this cycle has been to his super PAC, the Conservative Action Fund, to which he has contributed $82,300, including $75,000 in loans.

This election cycle, he also loaned a hefty chunk of change to another super PAC that he was involved with: “America Get Up,” which he gave $31,500, about half of which was repaid before the super PAC, which was formed in March of 2011, closed its doors last summer.

McCutcheon served as the treasurer of the now-defunct group, which was founded by Dale Peterson, the quick-talking, horse-riding, cowboy hat-wearing, gun-toting candidate for the Alabama Agriculture Commissioner whose first campaign ad in 2010 became an internet phenomenon.

Backer, of DB Capitol Strategies, was also involved with both America Get Up and the Conservative Action Fund, and as the assistant treasurer for each group, he regularly filed their paperwork with the FEC.

FEC may not have final say

While individuals are free to donate as much as they please to super PACs, that’s not the case with federal candidates, party committees or traditional PACs. And some say this new request before the FEC is unlikely to change that any time soon.

“The FEC has absolutely no authority to grant this request,” Larry Noble, an attorney who specializes in campaign finance law at D.C.-based firm Skadden, Arps, toldiWatch News. “A federal agency cannot declare an act of Congress unconstitutional.”

The existing contribution limits were set by Congress in the Bipartisan Campaign Reform Act of 2002, often called the “McCain-Feingold” campaign finance law after its chief sponsors in the U.S. Senate.

Action by the judicial branch of government would be required to declare the election-cycle aggregate contribution limits unconstitutional. And if the courts become involved in this fight, some political observers say the U.S. Supreme Court under the leadership of Chief Justice John Roberts may be sympathetic to McCutcheon’s case.

One such person is Rick Hasen, an election law expert and professor at the University of California-Irvine law school.

“I’ve thought for a long time that the aggregate limits could be in trouble before the Roberts Court,” Hasen told iWatch News.

That may be precisely where McCutcheon’s legal team hopes their case goes.

“I would not be surprised if the FEC is not the final stop in this matter,” said attorney Backer.

Reprinted by Permission © 2012, The Center for Public Integrity®

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