07/10/2012 10:23 am ET Updated Sep 09, 2012

RNC Lawsuit Challenging Contribution Limit Would Open Door to Corrupting Million Dollar Party Contributions

In a lawsuit filed recently in federal district court, the Republican National Committee challenged the constitutionality of a long standing contribution limit that was enacted to prevent corruption and that was upheld by the Supreme Court in Buckley v. Valeo (1976).

The RNC lawsuit, McCutcheon, et al. v. Federal Election Commission, challenges the aggregate limit on the amount that an individual can give to all federal candidates, PACs and political parties in a two-year election cycle. This limit was explicitly upheld as constitutional by the Supreme Court in the Buckley decision, which is controlling precedent in this case.

The RNC lawsuit would open the door to the RNC (and the DNC) receiving corrupting contributions of as much as $1,184,800 from a single donor for a two-year election cycle.

The lawsuit would also permit a federal officeholder to solicit a donor to give $1,184,800 to the officeholder's party. The party could then spend the entire amount to support the election of the officeholder soliciting the money.

This, in effect, would put officeholders back in the business of soliciting million dollar contributions from donors, a practice that was banned by the Bipartisan Campaign Reform Act of 2002 (BCRA). And it would provide the opportunity for massive circumvention of the $2,500 limit per election on what a donor could give to an officeholder or other candidate.

The RNC with this lawsuit is attempting to eviscerate the existing contribution limits and the existing prohibition on federal officeholders soliciting huge contributions. These provisions were enacted by Congress and upheld as constitutional by the Supreme Court in order to prevent the corruption of federal officeholders and government decisions. (The Campaign Legal Center and Democracy 21 are filing an amicus brief in the case to defend the aggregate contribution limit.)

Million-dollar contributions solicited by federal officeholders and laundered through political parties to support the officeholders who solicited the money re-create the system of legalized bribery that Congress ended with laws upheld by the Supreme Court.

As the late Senator Russell Long of Louisiana noted, "The distinction between a large campaign contribution and a bribe is almost a hairline's difference."

The current aggregate individual contribution limit is $117,000 for a two-year election cycle and there are two sub-limits within this overall limit: a total of $46,200 can be given by an individual to all federal candidates and a total of $70,800 can be given by an individual to all political party committees and PACs during the two-year period (The amounts of the aggregate limit have been adjusted upwards over the years.)

In the Buckley decision, the Supreme Court found the aggregate individual contribution limit essential to prevent evasion and circumvention of the law's other contribution limits.

The Court stated:

But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.

The RNC lawsuit seeks to permit the "huge contributions to the candidate's political party" that the Supreme Court in Buckley cited as the reason the aggregate limit is constitutional and necessary to prevent evasion of the candidate contribution limits.

BCRA contains additional provisions to prevent evasion of the contribution limits, including a ban on national parties, federal officeholders and federal candidates soliciting contributions larger than the federal contributions limits for candidates and parties, including the aggregate contribution limit.

The Supreme Court upheld the solicitation ban in McConnell v. Federal Election Commission (2003), on the same grounds of preventing "evasion" of the contribution limits that served as the basis for the Buckley decision upholding the aggregate contribution limit.

The Court stated in McConnell:

The solicitation, transfer, and use of soft money thus enabled parties and candidates to circumvent FECA's limitations on the source and amount of contributions in connection with federal elections.

The elimination of the aggregate limit on contributions from an individual to all party committees would lead to massive circumvention of both the limits on contributions to candidates and parties and the solicitation ban -- and would result in the functional equivalent of million dollar individual contributions to candidates.

Here is how the circumvention would work:

Under current law an individual can give up to $30,800 per year to each of the three national committees of a party -- the national party committee, the Senate party campaign committee and the House party campaign committee -- and $10,000 per year to each of the 50 state parties to spend in connection with federal elections.

All of this is currently subject to an overall cap of $70,800 on the total contributions an individual can give to all party committees in a two-year election cycle.

If the aggregate cap is removed, however, in each two-year election cycle an individual could give $61,600 to each of the three national committees of a party or a total of or $184,800, and could also give $20,000 to each of the 50 state parties of that political party, or a total of $1 million dollars. Absent the aggregate limit, the overall total that an individual could give to a party in a two-year election cycle would be $1,184,800.

Through the use of a joint party fundraising committee involving the three national committees and the 50 state committees of a party, and the ability of party committees to freely transfer funds to each other without limit, the joint party fundraising committee could receive a check for $1,184,800 from a donor, make instant electronic transfers back and forth among the party committees and end up with a $1,184,800 donation from an individual to the RNC.

Furthermore, an officeholder could solicit the $1,184,800 check for his party and the party through coordinated and/or independent expenditures could spend all of the money to support the officeholder's election. The $2,500 candidate contribution limit would be circumvented and the officeholder would have solicited and the donor would have given, in essence, a $1,184,800 contribution to the candidate.

The same result could be achieved if the money was solicited for and spent by the Senate Republican campaign committee or the House Republican campaign committee.

Of course, the Democrats and their party committees would be free to do the exact same thing.
The result: evisceration of the contributions limits enacted to prevent corruption of federal officeholders and the buying and selling of government decisions.

There is little doubt that million dollar contributions would be solicited and given if the aggregate contribution limit is removed. History makes clear that when it comes to raising and spending political money, what can be done will be done.

History also makes clear that huge contributions can and will be used to buy government decisions.

In 1972, for example, ITT pledged $400,000 to help finance the 1972 Republican convention. The Justice Department proceeded to quickly settle an antitrust case in ITT's favor, with President Nixon personally intervening to obtain the result. Similarly, the dairy industry gave $2 million to the Nixon re-election campaign. Shortly thereafter the dairy industry received the increase in dairy price supports they were seeking, with President Nixon intervening to override the objections of his Agriculture Department.

The elimination of the aggregate limit on contributions from an individual to all candidates in a two-year election cycle would have similar corrupting consequences. It would allow a single donor to contribute $5,000 to every House and Senate candidate of a party or more than $2 million in an election cycle. It would also allow a federal officeholder, such as the President, House Speaker and Senate Majority Leader, to solicit a check for more than $2 million from a single donor, making use of joint candidate fundraising committees.

This would permit a donor to obtain more than $2 million worth of corrupting influence.

The Supreme Court in Buckley upheld the constitutionality of the aggregate contribution limit to prevent circumvention of the candidate contribution limits. Nothing has changed since then to undermine or call into question this decision.

The legal issues raised in the RNC lawsuit are fully controlled by the Buckley decision and the case should be dismissed as without any legal basis or policy justification.