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Policy: Law

Supreme Court should resist Left's scare tactics in McCutcheon campaign finance case

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Op-Eds,Supreme Court,Campaign Finance,2014 Elections,2016 Elections,First Amendment,Freedom of Speech,Law

A zombie apocalypse may be nearly upon us if the campaign finance reform movement is to be believed.

As the Supreme Court prepares to hear oral arguments in McCutcheon v. Federal Election Commission on Tuesday, advocates of restricting political freedom have unleashed a $3.6 million bogeyman to try to scare the court into upholding an unnecessary restriction on free speech.

At issue in McCutcheon are biennial contribution limits, which restrict how much an individual may contribute in total to party committees, political action committees and candidates in a two-year election cycle.

The law currently limits individuals to contributing $74,600 to all party committees and PACs, and $48,600 to federal candidates for the 2014 election cycle. The McCutcheon case does not challenge the contribution cap of $2,600 per election to any single federal candidate and $32,400 per year to any party committee.

The court has said that the only rationale for contribution limits is to prevent corruption or the appearance of corruption. McCutcheon poses a simple question: If contributing the maximum amount to 18 candidates is not corrupting, how would any candidate become corrupted if a donor gives the maximum amount to 19 candidates?

Supporters of the biennial limit have no good response to this. Instead, they tried to hijack the conversation with hyperbolic and implausible nightmare scenarios.

Those nightmares raise the specter of the legal joint fundraising committees, which are created by two or more candidates or party committees and therefore can raise money in quantities that exceed the individual contribution limits.

JFCs must disburse funds to their member candidates or party committees so that no one receives more money from a donor than allowed, ensuring that JFCs cannot be used to circumvent the law. It is a way for candidates to share fundraising costs that has been used for decades.

Supporters of the biennial limit have argued that without it, JFCs will expand massively and open the door for politicians to solicit much larger sums of money than currently allowed.

They point out that without biennial limits, a JFC representing an entire party’s slate of federal candidates, national and state party committees could ask for $3.6 million from one donor.

While that might technically be true, it’s also hard to take seriously. If this is likely, then why isn’t it happening today? PACs, which face no biennial limit, can already contribute the maximum amount in every federal election if they please.

Politicians today could set up a JFC to ask PACs for up to $4.37 million, more than the allegedly horrifying $3.6 million nightmare proposed by supporters of the limit. That’s never happened.

The experience of the 50 states is also informative. Thirty-seven states do not have biennial limits on contributions from individuals to state legislative candidates, and no scheme where joint fundraising was exploited to ask for, or give, maximum contributions to all candidates and committees has ever been found.

Most likely, the real reason for this aggregate limit is that it protects incumbents. A study shows that challengers rely more heavily on large contributions than incumbents.

The First Amendment protects freedom of speech, and any time a restriction on political expression is considered, the burden of proof should be on those advocating for the restriction.

As the court considers the case, it should note that Congress never produced any evidence the limit would reduce corruption and that congressmen have a vested interest in making it harder for challengers to raise money.

A law that benefits incumbents while restricting free speech should evoke skepticism. Hopefully, the court will agree.

Lucas Wachob is the McWethy Fellow and policy analyst at the Center for Competitive Politics, which has filed a friend-of-the-court brief supporting Shaun McCutcheon.
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