SUPREME COURT OF THE UNITED STATES
_________________
No. 12–536
_________________
SHAUN McCUTCHEON, et al., APPELLANTS v.
FEDERAL ELECTION COMMISSION
on appeal from the united states district
court for the district of columbia
[April 2, 2014]
Justice Breyer, with
whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join,
dissenting.
Nearly 40 years ago in
Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), this Court
considered the constitutionality of laws that imposed limits upon
the overall amount a single person can contribute to all federal
candidates, political parties, and committees taken together. The
Court held that those limits did not violate the Constitution. Id.,
at 38; accord, McConnell v. Federal Election Comm’n, 540
U. S. 93 , n. 40, 152–153, n. 48 (2003)
(citing with approval Buckley’s aggregate limits
holding).
The Buckley Court
focused upon the same problem that concerns the Court today, and it
wrote:
“The overall $25,000 ceiling does
impose an ultimate restriction upon the number of candidates and
committees with which an individual may associate himself by means
of financial support. 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 associa-tional 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.” 424 U. S., at 38.
Today a majority of the
Court overrules this holding. It is wrong to do so. Its conclusion
rests upon its own, not a record-based, view of the facts. Its
legal analysis is faulty: It misconstrues the nature of the
competing constitutional interests at stake. It understates the
importance of protecting the political integrity of our
governmental insti- tutions. It creates a loophole that will allow
a single individual to contribute millions of dollars to a
political party or to a candidate’s campaign. Taken together
with Citizens United v. Federal Election Comm’n, 558
U. S. 310 (2010) , today’s decision eviscerates our
Nation’s campaign finance laws, leaving a remnant incapable
of dealing with the grave problems of democratic legitimacy that
those laws were intended to resolve.
I
The plurality
concludes that the aggregate contribution limits
“ ‘unnecessar[ily] abridg[e]’ ”
First Amendment rights. Ante, at 8, 30 (quoting Buckley, supra, at
25). It notes that some individuals will wish to “spen[d]
‘substantial amounts of money in order to communicate [their]
political ideas through sophisticated’ means.” Ante, at
14–15 (quoting Federal Election Comm’n v. National
Conservative Political Action Comm., 470 U. S. 480, 493 (1985)
(NCPAC)). Aggregate contribution ceilings limit an
individual’s ability to engage in such “broader
participation in the democratic process,” while
insufficiently advancing any legitimate governmental objective.
Ante, at 16, 21–29. Hence, the plurality finds, they violate
the Constitution.
The plurality’s
conclusion rests upon three separate but related claims. Each is
fatally flawed. First, the plurality says that given the base
limits on contributions to candi-dates and political committees,
aggregate limits do not further any independent governmental
objective worthy of protection. And that is because, given the base
limits, “[s]pending large sums of money in connection with
elections” does not “give rise to . . .
corruption.” Ante, at 19. In making this argument, the
plurality relies heavily upon a narrow definition of
“corruption” that excludes efforts to obtain
“ ‘influence over or access to’ elected
officials or political parties. ” Ibid. (quoting
Citizens United, supra, at 359); accord, ante, at 18–20,
22–29.
Second, the plurality
assesses the instrumental objective of the aggregate limits,
namely, safeguarding the base limits. It finds that they “do
not serve that function in any meaningful way.” Ante, at
22. That is because, even without the aggregate limits, the
possibilities for circumventing the base limits are
“implausible” and “divorced from reality.”
Ante, at 23, 24, 28.
Third, the plurality
says the aggregate limits are not a
“ ‘reasonable’ ” policy tool.
Rather, they are “poorly tailored to the Government’s
interest in preventing circumvention of the base limits.”
Ante, at 30 (quoting Board of Trustees of State Univ. of N. Y. v.
Fox, 492 U. S. 469, 480 (1989) ). The plurality imagines
several alternative regulations that it says might just as
effectively thwart circumvention. Accordingly, it finds, the
aggregate caps are out of “ ‘proportion to the
[anticorruption] interest served.’ ” Ante, at 30
(quoting Fox, supra, at 480).
II
The plurality’s
first claim—that large aggregate contributions do not
“give rise” to “corruption”—is
plausible only because the plurality defines
“corruption” too narrowly. The plurality describes the
constitutionally permissible objective of campaign finance
regulation as follows: “Congress may target only a specific
type of corruption—‘quid pro quo’
corruption.” Ante, at 19. It then defines quid pro quo
corruption to mean no more than “a direct exchange of an
official act for money”—an act akin to bribery. Ante,
at 2–3. It adds specifically that corruption does not include
efforts to “garner ‘influence over or access to’
elected officials or political parties.” Ante, at 19 (quoting
Citizens United, supra, at 359). Moreover, the Government’s
efforts to prevent the “appearance of corruption” are
“equally confined to the appearance of quid pro quo
corruption,” as narrowly defined. Ante, at 19. In the
plurality’s view, a federal statute could not prevent an
individual from writing a million dollar check to a political party
(by donating to its various committees), because the rationale for
any limit would “dangerously broade[n] the circumscribed
definition of quid pro quo corruption articulated in our prior
cases.” Ante, at 37.
This critically
important definition of “corruption” is inconsistent
with the Court’s prior case law (with the possible exception
of Citizens United, as I will explain below). It is virtually
impossible to reconcile with this Court’s decision in
McConnell, upholding the Bipartisan Campaign Reform Act of 2002
(BCRA). And it misun- derstands the constitutional importance of
the interests at stake. In fact, constitutional
interests—indeed, First Amendment interests—lie on both
sides of the legal equation.
A
In reality, as the
history of campaign finance reform shows and as our earlier cases
on the subject have recognized, the anticorruption interest that
drives Congress to regulate campaign contributions is a far
broader, more important interest than the plurality acknowledges.
It is an interest in maintaining the integrity of our public
governmental institutions. And it is an interest rooted in the
Constitution and in the First Amendment itself.
Consider at least one
reason why the First Amendment protects political speech. Speech
does not exist in a vac- uum. Rather, political communication seeks
to secure government action. A politically oriented
“marketplace of ideas” seeks to form a public opinion
that can and will influence elected representatives.
This is not a new idea.
Eighty-seven years ago, Justice Brandeis wrote that the First
Amendment’s protection of speech was “essential to
effective democracy.” Whitney v. California, 274 U. S.
357, 377 (1927) (concurring opinion). Chief Justice Hughes
reiterated the same idea shortly thereafter: “A fundamental
principle of our constitutional system” is the
“maintenance of the opportunity for free political discussion
to the end that government may be responsive to the will of the
people.” Stromberg v. California, 283 U. S. 359, 369
(1931) (emphasis added). In Citizens United, the Court stated that
“[s]peech is an essential mechanism of democracy, for it is
the means to hold officials accountable to the people.” 558
U. S., at 339 (emphasis added).
The Framers had good
reason to emphasize this same connection between political speech
and governmental action. An influential 18th-century continental
philosopher had argued that in a representative democracy, the
people lose control of their representatives between elections,
during which interim periods they were “in chains.” J.
Rousseau, An Inquiry Into the Nature of the Social Contract
265–266 (transl. 1791).
The Framers responded
to this criticism both by requiring frequent elections to federal
office, and by enacting a First Amendment that would facilitate a
“chain of communication between the people, and those, to
whom they have committed the exercise of the powers of
government.” J. Wilson, Commentaries on the Constitution of
the United States of America 30–31 (1792). This
“chain” would establish the necessary “communion
of interests and sympathy of sentiments” between the people
and their representatives, so that public opinion could be
channeled into effective governmental action. The Federalist No.
57, p. 386 (J. Cooke ed. 1961) (J. Madison); accord, T.
Benton, 1 Abridgement of the Debates of Congress, from 1789 to
1856, p. 141 (1857) (explaining that the First Amendment will
strengthen American democracy by giving “ ‘the
people’ ” a right to “ ‘publicly
address their representatives,’ ”
“ ‘privately advise them,’ ” or
“ ‘declare their sentiments by petition to the
whole body’ ” (quoting James Madison)).
Accordingly, the First Amendment advances not only the
individual’s right to engage in political speech, but also
the public’s interest in preserving a democratic order in
which collective speech matters.
What has this to do
with corruption? It has everything to do with corruption.
Corruption breaks the constitutionally necessary “chain of
communication” between the people and their representatives.
It derails the essential speech-to-government-action tie. Where
enough money calls the tune, the general public will not be heard.
Insofar as corruption cuts the link between political thought and
political action, a free marketplace of political ideas loses its
point. That is one reason why the Court has stressed the
constitutional importance of Congress’ concern that a few
large donations not drown out the voices of the many. See, e.g.,
Buckley, 424 U. S., at 26–27.
That is also why the
Court has used the phrase “subversion of the political
process” to describe circumstances in which “[e]lected
officials are influenced to act contrary to their obligations of
office by the prospect of financial gain to themselves or infusions
of money into their campaigns.” NCPAC, 470 U. S., at
497. See also Federal Election Comm’n v. National Right to
Work Comm., 459 U. S. 197, 208 (1982) (the Government’s
interests in preventing corruption “directly implicate the
integrity of our electoral process” (internal quotation marks
and citation omitted)). See generally R. Post, Citizens Divided:
Campaign Fi-nance Reform and the Constitution 7–16,
80–94 (forthcoming 2014) (arguing that the efficacy of
American democ- racy depends on “electoral integrity”
and the responsiveness of public officials to public opinion).
The “appearance
of corruption” can make matters worse. It can lead the public
to believe that its efforts to communicate with its representatives
or to help sway public opinion have little purpose. And a cynical
public can lose interest in political participation altogether. See
Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 390
(2000) (“[T]he cynical assumption that large donors call the
tune could jeopardize the willingness of voters to take part in
democratic governance”). Democracy, the Court has often said,
cannot work unless “the people have faith in those who
govern.” United States v. Mississippi Valley Generating Co.,
364 U. S. 520, 562 (1961) .
The upshot is that the
interests the Court has long described as preventing
“corruption” or the “appearance of
corruption” are more than ordinary factors to be weighed
against the constitutional right to political speech. Rather, they
are interests rooted in the First Amendment it- self. They are
rooted in the constitutional effort to create a democracy
responsive to the people—a government where laws reflect the
very thoughts, views, ideas, and sentiments, the expression of
which the First Amendment protects. Given that end, we can and
should understand campaign finance laws as resting upon a broader
and more significant constitutional rationale than the plural-
ity’s limited definition of “corruption”
suggests. We should see these laws as seeking in significant part
to strengthen, rather than weaken, the First Amendment. To say this
is not to deny the potential for conflict between (1) the need to
permit contributions that pay for the diffusion of ideas, and (2)
the need to limit payments in order to help maintain the integrity
of the electoral process. But that conflict takes place within, not
outside, the First Amendment’s boundaries.
B
Since the kinds of
corruption that can destroy the link between public opinion and
governmental action extend well beyond those the plurality
describes, the plurality’s notion of corruption is flatly
inconsistent with the basic constitutional rationale I have just
described. Thus, it should surprise no one that this Court’s
case law (Citizens United excepted) insists upon a considerably
broader definition.
In Buckley, for
instance, the Court said explicitly that aggregate limits were
constitutional because they helped “prevent evasion . . .
[through] huge contributions to the candidate’s political
party,” 424 U. S., at 26 (the contrary to what the
plurality today seems to believe, see ante, at 36–39).
Moreover, Buckley upheld the base limits in significant part
because they helped thwart “the appearance of corruption
stemming from public awareness of the opportunities for abuse
inherent in a regime of large individual financial
contributions.” 424 U. S., at 27 (emphasis added). And it
said that Congress could reasonably conclude that criminal laws
forbidding “the giving and taking of bribes” did not
adequately “deal with the reality or appearance of
corruption.” Id., at 28. Bribery laws, the Court recognized,
address “only the most blatant and specific attempts of those
with money to influence governmental action.” Ibid. The
concern with corruption extends further.
Other cases put the
matter yet more strongly. In Beaumont, for example, the Court found
constitutional a ban on direct contributions by corporations
because of the need to prevent corruption, properly
“understood not only as quid pro quo agreements, but also as
undue influence on an officeholder’s judgment.” Federal
Election Comm’n v. Beaumont, 539 U. S. 146 –156
(2003). In Federal Election Comm’n v. Colorado Republican
Federal Campaign Comm., 533 U. S. 431 –460 (2001) (Colo-
rado II ), the Court upheld limits imposed upon coordinated
expenditures among parties and candidates because it found they
thwarted corruption and its appearance, again understood as
including “undue influence” by wealthy donors. In
Shrink Missouri, the Court upheld limitations imposed by the
Missouri Legislature upon contributions to state political
candidates, not only because of the need to prevent bribery, but
also because of “the broader threat from politicians too
compliant with the wishes of large contributors.” 528
U. S., at 389.
C
Most important, in
McConnell, this Court considered the constitutionality of the
Bipartisan Campaign Reform Act of 2002, an Act that set new limits
on “soft money” contributions to political parties.
“Soft money” referred to funds that, prior to BCRA,
were freely donated to parties for activities other than directly
helping elect a federal candidate—activities such as voter
registration, “get out the vote” drives, and
advertising that did not expressly advocate a federal
candidate’s election or defeat. 540 U. S., at
122–124. BCRA imposed a new ban on soft money contributions
to national party committees, and greatly curtailed them in respect
to state and local parties. Id., at 133–134,
161–164.
The Court in McConnell
upheld these new contribution restrictions under the First
Amendment for the very reason the plurality today discounts or
ignores. Namely, the Court found they thwarted a significant risk
of cor- ruption—understood not as quid pro quo bribery, but
as privileged access to and pernicious influence upon elected
representatives.
In reaching its
conclusion in McConnell, the Court relied upon a vast record
compiled in the District Court. That record consisted of over
100,000 pages of material and included testimony from more than 200
witnesses. See 251 F. Supp. 2d 176, 209 (DC 2003) (per
curiam). What it showed, in detail, was the web of relationships
and un- derstandings among parties, candidates, and large donors
that underlies privileged access and influence. See McConnell, 540
U. S., at 146–152, 154–157, 167–171,
182–184. The District Judges in McConnell made clear that the
record did “not contain any evidence of bribery or vote
buying in exchange for donations of nonfederal money.” 251
F. Supp. 2d, at 481 (opinion of Kollar-Kotelly, J.) (emphasis
added). Indeed, no one had identified a “single discrete
instance of quid pro quo corruption” due to soft money. Id.,
at 395 (opinion of Henderson, J.). But what the record did
demonstrate was that enormous soft money contributions, ranging
between $1 million and $5 million among the largest donors, enabled
wealthy contributors to gain disproportionate “access to
federal lawmakers” and the ability to “influenc[e]
legislation.” Id., at 481 (opinion of Kollar-Kotelly, J.).
There was an indisputable link between generous political donations
and opportunity after opportunity to make one’s case directly
to a Member of Congress.
Testimony by elected
officials supported this conclusion. See, e.g., ibid.
(“ ‘Large donors of both hard and soft money
receive special treatment’ ” (Sen. Simpson)); id.,
at 482 (“ ‘Donations, including soft money
donations to political parties, do affect how Congress operates.
It’s only natural, and happens all too often, that a busy
Senator with 10 minutes to spare will spend those minutes returning
the call of a large soft money donor’ ” (Sen.
Boren)); id., at 496 (“ ‘At a minimum, large soft
money donations purchase an opportunity for the donors to make
their case to elected officials . . .’ ” (Sen.
McCain)). Furthermore, testimony from party operatives showed that
national political parties had created “major donor
programs,” through which they openly “offer[ed] greater
access to federal office holders as the donations gr[e]w
larger.” Id., at 502. I have placed in Appendix A more
examples of the kind of evidence that filled the District Court
record in McConnell.
This Court upheld
BCRA’s limitations on soft money contributions by relying on
just the kind of evidence I have described. We wrote:
“The evidence in the record shows
that candidates and donors alike have in fact exploited the
soft-money loophole, the former to increase their prospects of
election and the latter to create debt on the part of officeholders
. . . . Plaintiffs argue that without concrete evidence of an
instance in which a federal officeholder has actually switched a
vote [in exchange for soft money] . . . , Congress has not shown
that there exists real or apparent corruption. . . . [P]laintiffs
conceive of corruption too narrowly. Our cases have firmly
established that Congress’ legitimate interest extends beyond
preventing simple cash-for-votes corruption to curbing ‘undue
influence on an officeholder’s judgment, and the appearance
of such influence.’ ” 540 U. S., at 146,
149–150 (quoting Colorado II, 533 U. S., at 441;
emphasis added; paragraphs and paragraph breaks omitted).
We specifically rejected efforts to define
“corruption” in ways similar to those the plurality
today accepts. We added:
“Just as troubling to a functioning
democracy as classic quid pro quo corruption is the danger that
officeholders will decide issues not on the merits or the desires
of their constituencies, but according to the wishes of those who
have made large financial contributions valued by the
officeholder.” 540 U. S., at 153.
Insofar as today’s decision sets forth a
significantly nar-rower definition of “corruption,” and
hence of the public’s interest in political integrity, it is
flatly inconsistent with McConnell.
D
One case, however,
contains language that offers the plurality support. That case is
Citizens United. There, as the plurality points out, ante, at 19,
the Court said that “[w]hen Buckley identified a sufficiently
important governmental interest in preventing corruption or the
appearance of corruption, that interest was limited to quid pro quo
corruption.” 558 U. S., at 359. Further, the Court said that
quid pro quo corruption does not include “influence over or
access to elected officials,” because “ ‘generic
favoritism or influence theory . . . is at odds with standard First
Amendment analyses.’ ” Ibid. (quoting McConnell, supra,
at 296 (Kennedy, J., concurring in judgment in part and dissenting
in part)).
How should we treat
these statements from Citizens United now? They are not essential
to the Court’s holding in the case—at least insofar as
it can be read to require federal law to treat corporations and
trade unions like individuals when they independently pay for,
e.g., television advertising during the last 60 days of a federal
election. Citizens United, supra, at 365. Taken literally, the
statements cited simply refer to and characterize still-earlier
Court cases. They do not require the more absolute reading that the
plurality here gives them.
More than that. Read as
the plurality reads them today, the statements from Citizens United
about the proper contours of the corruption rationale conflict not
just with language in the McConnell opinion, but with
McConnell’s very holding. See supra, at 9–11. Did the
Court in Citizens United intend to overrule McConnell? I doubt it,
for if it did, the Court or certainly the dissent would have said
something about it. The total silence of all opinions in Citizens
United with respect to this matter argues strongly in favor of
treating the language quoted above as dic- tum, as an
overstatement, or as limited to the context in which it appears.
Citizens United itself contains language that supports the last
mentioned reading, for it says that “[Buckley] did not extend
this rationale [about the reality or appearance of corruption] to
independent expenditures, and the Court does not do so here.”
558 U. S., at 357 (emphasis added). And it adds that, while
“[t]he BCRA record establishes that certain donations to
political parties, called ‘soft money,’ were made to
gain access to elected officials,” “[t]his case,
however, is about independent expenditures, not soft money.”
Id., at 360–361 (emphasis added).
The plurality’s
use of Citizens United’s narrow definition of corruption
here, however, is a different matter. That use does not come
accompanied with a limiting context (independent expenditures by
corporations and unions) or limiting language. It applies to the
whole of campaign finance regulation. And, as I have pointed out,
it is flatly inconsistent with the broader definition of corruption
upon which McConnell’s holding depends.
So: Does the Court
intend today to overrule McConnell? Or does it intend to leave
McConnell and BCRA in place? The plurality says the latter. Ante,
at 20–21, n. 6 (“Our holding about the
constitutionality of the aggregate limits clearly does not overrule
McConnell’s holding about ‘soft
money’ ”). But how does the plurality explain its
rejection of the broader definition of corruption, upon which
McConnell’s holding depends? Compare ante, at 18–21,
with McConnell, 540 U. S., at 146, 149–153.
III
The plurality
invalidates the aggregate contribution limits for a second reason.
It believes they are no longer needed to prevent contributors from
circumventing federal limits on direct contributions to
individuals, political parties, and political action committees.
Ante, at 22–29. Cf. Buckley, 424 U. S., at 38 (aggregate
limits “prevent evasion” of base contribution limits).
Other “campaign finance laws,” combined with
“experience” and “common sense,” foreclose
the various circumvention scenarios that the Government
hypothesizes. Ante, at 28. Accordingly, the plurality concludes,
the aggregate limits provide no added benefit.
The plurality is wrong.
Here, as in Buckley, in the absence of limits on aggregate
political contributions, donors can and likely will find ways to
channel millions of dollars to parties and to individual
candidates, producing precisely the kind of
“corruption” or “appearance of corruption”
that previously led the Court to hold aggregate limits
constitutional. Those opportunities for circumvention will also
produce the type of corruption that concerns the plurality today.
The methods for using today’s opinion to evade the
law’s individual contribution limits are complex, but they
are well known, or will become well known, to party fundraisers. I
shall describe three.
A
Example One: Gifts
for the Benefit of the Party. Campaign finance law permits each
individual to give $64,800 over two years to a national party
committee. 2 U. S. C. §441a(a)(1)(B); 78 Fed. Reg.
8532 (2013). The two major political parties each have three
national committees. Ante, at 4, n. 1. Federal law also
entitles an individual to give $20,000 to a state party committee
over two years. §441a(a)(1)(D). Each major political party has
50 such committees. Those individual limits mean that, in the
absence of any aggregate limit, an individual could legally give to
the Republican Party or to the Democratic Party about $1.2 million
over two years. See Appendix B, Table 1, infra, at 39. To make it
easier for contributors to give gifts of this size, each party
could create a “Joint Party Committee,” comprising all
of its national and state party committees. The titular heads could
be the Speaker of the House of Representatives and the Minority
Leader of the House. A contributor could then write a single check
to the Joint Party Committee—and its staff would divide the
funds so that each constituent unit receives no more than it could
obtain from the contributor directly ($64,800 for a national
committee over two years, $20,000 for a state committee over the
same). Before today’s decision, the total size of Rich
Donor’s check to the Joint Party Committee was capped at
$74,600—the aggregate limit for donations to political
parties over a 2-year election cycle. See §441a(a)(3)(B); 78
Fed. Reg. 8532. After today’s decision, Rich Donor can write
a single check to the Joint Party Committee in an amount of about
$1.2 million.
Will political parties
seek these large checks? Why not? The recipient national and state
committees can spend the money to buy generic party advertisements,
say television commercials or bumper stickers saying “Support
Republicans,” “Support Democrats,” or the like.
They also can transfer the money to party committees in
battleground States to increase the chances of winning hotly
contested seats. See §441a(a)(4) (permitting national or state
po- litical committees to make unlimited “transfers” to
other committees “of the same political party”).
Will party officials
and candidates solicit these large contributions from wealthy
donors? Absolutely. Such con- tributions will help increase the
party’s power, as well as the candidate’s standing
among his colleagues.
Will elected officials
be particularly grateful to the large donor, feeling obliged to
provide him special access and influence, and perhaps even a quid
pro quo legislative favor? That is what we have previously
believed. See McConnell, 540 U. S., at 182 (“Large soft-money
donations at a candidate’s or officeholder’s behest
give rise to all of the same corruption concerns posed by
contributions made directly to the candidate or
officeholder”); id., at 308 (opinion of Kennedy, J.)
(“The making of a solicited gift is a quid both to the
recipient of the money and to the one who solicits the
payment”); Colorado II, 533 U. S., at 460, n. 23
(explaining how a candidate can “become a player [in his
party] beyond his own race” by “directing donations to
the party and making sure that the party knows who raised the
money,” and that “the donor’s influence is
multiplied” in such instances). And, as the statements
collected in Appendix A, infra, make clear, we have believed this
with good reason.
Example Two: Donations
to Individual Candidates (The $3.6 Million Check). The first
example significantly understates the problem. That is because
federal election law also allows a single contributor to give
$5,200 to each party candidate over a 2-year election cycle
(assuming the candidate is running in both a primary and a general
election). §441a(a)(1)(A); 78 Fed. Reg. 8532. There are 435
party candidates for House seats and 33 party candidates for Senate
seats in any given election year. That makes an additional $2.4
million in allowable contributions. Thus, without an aggregate
limit, the law will permit a wealthy individual to write a check,
over a 2-year election cycle, for $3.6 million—all to benefit
his political party and its candidates. See Appendix B, Table 2(a),
infra, at 39.
To make it easier for a
wealthy donor to make a contribution of this size, the parties can
simply enlarge the composition of the Joint Party Committee
described in Example One, so that it now includes party candidates.
And a party can proliferate such joint entities, perhaps calling
the first the “Smith Victory Committee,” the second the
“Jones Victory Committee,” and the like. See 11 CFR
§102.17(c)(5) (2012). (I say “perhaps” because too
transparent a name might call into play certain earmarking rules.
But the Federal Election Commission’s (FEC) database of joint
fundraising committees in 2012 shows similarly named entities,
e.g., “Landrieu Wyden Victory Fund,” etc.).
As I have just said,
without any aggregate limit, the law will allow Rich Donor to write
a single check to, say, the Smith Victory Committee, for up to $3.6
million. This check represents “the total amount that the
contributor could contribute to all of the participants” in
the Committee over a 2-year cycle. §102.17(c)(5). The
Committee would operate under an agreement that provides a
“for- mula for the allocation of fundraising proceeds”
among its constituent units. §102.17(c)(1). And that
“formula” would divide the proceeds so that no
committee or can- didate receives more than it could have received
from Rich Donor directly—$64,800, $20,000, or $5,200. See
§102.17(c)(6).
So what is wrong with
that? The check is considerably larger than Example One’s
check. But is there anything else wrong? The answer is yes,
absolutely. The law will also permit a party and its candidates to
shift most of Rich Donor’s contributions to a single
candidate, say Smith. Here is how:
The law permits each
candidate and each party committee in the Smith Victory Committee
to write Candidate Smith a check directly. For his primary and
general elections combined, they can write checks of up to $4,000
(from each candidate’s authorized campaign committee) and
$10,000 (from each state and national committee). 2
U. S. C. §§432(e)(3)(B), 441a(a)(2)(A); 11 CFR
§110.3(b). This yields a potential $1,872,000 (from
candidates) plus $530,000 (from party committees). Thus, the law
permits the candidates and party entities to redirect $2.37 million
of Rich Donor’s $3.6 million check to Candidate Smith. It
also permits state and national committees to contribute to
Smith’s general election campaign through making coordinated
expenditures—in amounts that range from $46,600 to $2.68
million for a general election (depending upon the size of
Smith’s State and whether he is running for a House or Senate
seat). 78 Fed. Reg. 8530–8532. See Appendix B, Table 2(b),
infra, at 40.
The upshot is that
Candidate Smith can receive at least $2.37 million and possibly the
full $3.6 million contributed by Rich Donor to the Smith Victory
Committee, even though the funds must first be divided up among the
constituent units before they can be rerouted to Smith. Nothing
requires the Smith Victory Committee to explain in advance to Rich
Donor all of the various transfers that will take place, and
nothing prevents the entities in the Committee from informing the
donor and the receiving candidate after the fact what has
transpired. Accordingly, the money can be donated and rerouted to
Candidate Smith without the donor having violated the base limits
or any other FEC regulation. And the evidence in the McConnell
record reprinted in Appendix A, infra—with respect to soft
money contributions—makes clear that Candidate Smith will
almost certainly come to learn from whom he has received this
money.
The parties can apply
the same procedure to other large donations, channeling money from
Rich Donor Two to Candidate Jones. If 10 or 20 candidates face
particularly tight races, party committees and party candidates may
work together to channel Rich Donor One’s multimillion dollar
contribution to the Most Embattled Candidate (e.g., Candidate
Smith), Rich Donor Two’s multimillion dollar contribution to
the Second Most Embattled Candidate (e.g., Candidate Jones), and so
on down the line. If this does not count as evasion of the base
limits, what does? Present aggregate limits confine the size of any
individual gift to $123,200. Today’s opinion creates a
loophole measured in the millions.
Example Three:
Proliferating Political Action Commit-tees (PACs). Campaign finance
law prohibits an individual from contributing (1) more than $5,200
to any candidate in a federal election cycle, and (2) more than
$5,000 to a PAC in a calendar year. 2 U. S. C.
§§441a(a)(1)(A), (C); 78 Fed. Reg. 8532. It also
prohibits (3) any PAC from contributing more than $10,000 to any
candidate in an election cycle. §441(a)(2)(A). But the law
does not prohibit an individual from contributing (within the
current $123,200 biannual aggregate limit) $5,000 to each of an
unlimited total number of PACs. And there, so to speak, lies the
rub.
Here is how, without
any aggregate limits, a party will be able to channel $2 million
from each of ten Rich Do- nors to each of ten Embattled Candidates.
Groups of party supporters—individuals, corporations, or
trade unions—create 200 PACs. Each PAC claims it will use the
funds it raises to support several candidates from the party,
though it will favor those who are most endangered. (Each PAC
qualifies for “multicandidate” status because it has
received contributions from more than 50 persons and has made
contributions to five federal candidates at some point previously.
§441a(a)(4); 11 CFR §100.5(e)(3)). Over a 2-year election
cycle, Rich Donor One gives $10,000 to each PAC ($5,000 per
year)—yielding $2 million total. Rich Donor 2 does the same.
So, too, do the other eight Rich Donors. This brings their total
donations to $20 million, disbursed among the 200 PACs. Each PAC
will have collected $100,000, and each can use its money to write
ten checks of $10,000—to each of the ten most Embattled
Candidates in the party (over two years). See Appendix B, Table 3,
infra, at 41. Every Embattled Candidate, receiving a $10,000 check
from 200 PACs, will have collected $2 million.
The upshot is that ten
Rich Donors will have contrib- uted $2 million each, and ten
Embattled Candidates will have collected $2 million each. In this
example, unlike Example Two, the recipient candidates may not know
which of the ten Rich Donors is personally responsible for the $2
million he or she receives. But the recipient candidate is highly
likely to know who the ten Rich Donors are, and to feel
appropriately grateful. Moreover, the ability of a small group of
donors to contribute this kind of money to threatened candidates is
not insignificant. In the example above—with ten Rich Donors
giving $2 million each, and ten Embattled Candidates receiving $2
million each—the contributions would have been enough to
finance a considerable portion of, and perhaps all of, the
candidates’ races in the 2012 elections. See Appendix C,
Table 1, infra, at 42 (showing that in 2012, the average winning
House candidate spent $1.6 million and the average winning Senate
candidate spent $11.5 million).
B
The plurality
believes that the three scenarios I have just depicted either pose
no threat, or cannot or will not take place. It does not believe
the scenario depicted in Example One is any cause for concern,
because it involves only “general, broad-based support of a
political party.” Ante, at 37. Not so. A candidate who
solicits a multimillion dollar check for his party will be deeply
grateful to the checkwriter, and surely could reward him with a
quid pro quo favor. The plurality discounts the scenarios depicted
in Example Two and Example Three because it finds such
circumvention tactics “illegal under current campaign finance
laws,” “implausible,” or “divorced from
reality.” Ante, at 23, 24, 28. But they are not.
The plurality’s
view depends in large part upon its claim that since this Court
decided Buckley in 1976, changes in either statutory law or in
applicable regulations have come to make it difficult, if not
impossible, for these circumvention scenarios to arise. Hence, it
concludes, there is no longer a need for aggregate contribution
limits. See ante, at 11–13, 22–29. But a closer
examination of the five legal changes to which the plurality points
makes clear that those changes cannot effectively stop the abuses
that I have depicted.
First, the plurality
points out that in 1976 (a few months after this Court decided
Buckley) Congress “added limits on contributions to political
committees,” i.e., to PACs. Ante, at 11; accord, 90Stat. 487
(codified at 2 U. S. C. §441a(a)(1)(C)). But Example
Three, the here-relevant example, takes account of those limits,
namely, $5,000 to a PAC in any given year. And it shows that the
per-PAC limit does not matter much when it comes to the potential
for circumvention, as long as party supporters can create dozens or
hundreds of PACs. Federal law places no upper limit on the number
of PACs supporting a party or a group of party candidates that can
be established. And creating a PAC is primarily a matter of
paperwork, a knowledgeable staff person, and a little time.
Second, the plurality
points out that in 1976, Congress “also added an
antiproliferation rule prohibiting donors from creating or
controlling multiple affiliated political committees.” Ante,
at 12. The rule provides that “all contributions made by
political committees established or financed or maintained or
controlled” by the same corporation, labor organization,
person, or group of persons, “shall be considered to have
been made by a single political committee.” §441a(a)(5).
But different supporters can create different PACs. Indeed, there
were roughly 2,700 “nonconnected” PACs (i.e., PACs not
connected to a spe- cific corporation or labor union) operating
during the 2012 elections. Ante, at 24. In a future without
aggregate contribution limits, far more nonconnected PACs will
likely appear. The plurality also notes that the FEC can examine
certain “ ‘circumstantial
factors,’ ” such as “ ‘common or
overlapping membership’ ” or
“ ‘similar patterns of
contributions,’ ” to determine whether a group of
PACs are affiliated. Ante, at 25 (quoting 11 CFR
§100.5(g)(4)(ii)). But the ultimate question in the
affiliation inquiry is whether “one committee or organization
[has] been established, financed, maintain or controlled by another
committee or sponsoring organization.” Ibid. Just because a
group of multicandidate PACs all support the same party and all
decide to donate funds to a group of endangered candidates in that
party does not mean they will qualify as “affiliated”
under the relevant definition. This rule appears inadequate to stop
the sort of circumvention depicted in Example Three.
Third, the plurality
says that a post-Buckley regulation has strengthened the
statute’s earmarking provision. Ante, at 12. Namely, the
plurality points to a rule pro- mulgated by the FEC in 1976,
specifying that earmarking includes any “designation
‘whether direct or indirect, express or implied, oral or
written.’ ” Ibid. (quoting 11 CFR §110.6(b));
accord, 41 Fed. Reg. 35950 (1976). This means that if Rich Donor
were to give $5,000 to a PAC while “designat[ing]” (in
any way) that the money go to Candidate Smith, those funds must
count towards Rich Donor’s total allowable contributions to
Smith—$5,200 per election cycle. But the virtually identical
earmarking provision in effect when this Court decided Buckley
would have required the same thing. That provision also counted,
when applying the base contribution limits, “all contri-
butions made by a person, either directly or indirectly, on behalf
of a particular candidate, including contributions which are in any
way earmarked or otherwise directed through an intermediary or
conduit to a candidate.” 88Stat. 1264; accord, 2 U. S. C.
§441a(a)(8) (same). What is the difference?
Fourth, the plurality
points out that the FEC’s regulations “specify that an
individual who has contributed to a particular candidate committee
may not also contribute to a single-candidate committee for that
candidate.” Ante, at 12–13 (citing 11 CFR
§110.1(h)(1); emphasis added). The regulations, however, do
not prevent a person who has contributed to a candidate from also
contributing to multicandidate committees that support the
candidate. Indeed, the rules specifically authorize such
contributions. See §110.1(h) (“A person may contribute
to a candidate . . . and also contribute to a political committee
which has sup- ported, or anticipates supporting, the same
candidate in the same election,” as long as the political
committee is “not the candidate’s principal campaign
committee” or a “single candidate committee”
(emphasis added)). Example Three illustrates the latter kind of
contribution. And briefs before us make clear that the possibility
for circumventing the base limits through making such contributions
is a realistic, not an illusory, one. See Brief for Appellee 36
(demonstrating that many PACs today explain in their public
materials just what fairly small group of candidates they intend to
support); Brief for Americans for Campaign Reform as Amicus Curiae
14–15 (similar).
Fifth, the plurality
points to another FEC regulation (also added in 1976), which says
that “an individual who has contributed to a candidate”
may not “also contribute to a political committee that has
supported or anticipates supporting the same candidate if the
individual knows that ‘a substantial portion [of his
contribution] will be contributed to, or expended on behalf
of,’ that candidate.” Ante, at 13 (quoting 11 CFR
§110.1(h)(2); brackets in original); accord, 41 Fed. Reg.
35948. This regulation is important, for in principle, the FEC
might use it to prevent the circumstances that Examples Two and
Three set forth from arising. And it is not surprising that the
plurality relies upon the existence of this rule when it describes
those circumstances as “implausible,”
“illegal,” or “divorced from reality.”
Ante, at 23, 24, 28.
In fact, however, this
regulation is not the strong anti-circumvention weapon that the
plurality imagines. Despite the plurality’s assurances, it
does not “disarm” the possibilities for circumvention.
Ante, at 23. That is because the regulation requires a showing that
donors have “knowledge that a substantial portion” of
their contributions will be used by a PAC to support a candidate to
whom they have already contributed. §110.1(h)(2) (emphasis
added). And “knowledge” is hard to prove.
I have found nine FEC
cases decided since the year 2000 that refer to this regulation. In
all but one, the FEC failed to find the requisite
“knowledge”—despite the presence of Example Two
or Example Three circumstances. See Factual and Legal Analysis, In
re: Transfund PAC, Matter Under Review (MUR) 6221, p. 11 (FEC,
June 7, 2010) (although the donor “might reasonably infer
that some portion of his contribution” to a candidate’s
Leadership PAC would be used to support the candidate, “such
an inference alone does not suggest that [he] had ‘actual
knowledge’ ” of such); Factual and Legal Analysis,
In re: John Shadegg’s Friends, MUR 5968, pp. 3, 6–7
(FEC, Nov. 10, 2008) (“[T]here is no basis on which to
conclude that [the donors] knew that the funds they contributed to
LEAD PAC would be used to support the Shadegg Committee” even
though Congressman Shadegg solicited the donations and LEAD PAC was
Congressman Shadegg’s Leadership PAC); Factual and Legal
Analysis, In re: Walberg for Congress, MUR 5881, pp. 6, 9–11
(FEC, Aug. 15, 2007) (finding seven contributors, who gave to a
candidate and to a PAC that provided 86% of the candidate’s
financing, had not shown “knowledge”); Factual and
Legal Analysis, In re: Matt Brown for Senate, MUR 5732, p. 11 (FEC,
Apr. 4, 2007) (“Though it may be reasonable to infer that the
individual donors solicited by Brown gave to the State Parties
under the assumption that some portion of their contribution might
then be donated to the Brown Committee, such an inference alone is
insufficient to find reason to believe 11 CFR §110.1(h) has
been violated”); First General Counsel’s Report, In re:
Liffrig for Senate, MUR 5678, pp. 8–9 (FEC, Nov. 27, 2006)
(similar); First General Counsel’s Report, In re: Nesbitt,
MUR 5445, pp. 11–12 (FEC, Feb. 2, 2005) (similar); First
General Counsel’s Report, In re: Keystone Corp., MUR
5019, pp. 23–29 (FEC, Feb. 5, 2001) (similar); General
Counsel’s Report #2, In re: Boston Capital Corp., MUR
4538, pp. 17–18 (FEC, Mar. 10, 2000) (recommending the FEC
take no action with respect to the §110.1(h) issue). Given
this record of FEC (in)activity, my reaction to the
plurality’s reliance upon agency enforcement of this rule (as
an adequate substitute for Congress’ aggregate limits) is
like Oscar Wilde’s after reading Dickens’ account of
the death of Little Nell: “One must have a heart of
stone,” said Wilde, “to read [it] without
laughing.” Oxford Dictionary of Humorous Quotations 86 (N.
Sherrin 2d ed. 2001).
I have found one
contrary example—the single example to which the plurality
refers. Ante, at 25 (citing Conciliation Agreement, In re Riley,
MURs 4568, 4633, 4634, 4736 (FEC, Dec. 19, 2001)). In that case,
the FEC found prob- able cause to believe that three individual
contributors to several PACs had the requisite
“knowledge” that the PACs would use a
“substantial portion” of their contributions to support
a candidate to whom they had already contributed—Sam
Brownback, a candidate for the Senate (for two of the
contributors), and Robert Riley, a candidate for the House (for the
third). The individuals had made donations to several PACs
operating as a network, under the direction of a single political
consulting firm. The two contributors to Sam Brownback were his
parents-in-law, and the FEC believed they might be using the PAC
network to channel extra support to him. The contributor to Robert
Riley was his son, and the FEC believed he might be doing the same.
The facts in this case are unusual, for individ- ual contributors
are not typically relatives of the candidates they are seeking to
support, and ordinary PACs do not tend to work in coordination
under the direction of a con-sulting firm. In any event, this
single swallow cannot make the plurality’s summer.
Thus, it is not
surprising that throughout the many years this FEC regulation has
been in effect, political parties and candidates have established
ever more joint fundraising committees (numbering over 500 in the
last federal elections); candidates have established ever more
“Leadership PACs” (numbering over 450 in the last
elections); and party supporters have established ever more
multicandidate PACs (numbering over 3,000 in the last elections).
See Appendix C, Tables 2–3, infra, at 42–43; FEC, 2014
Committee Summary (reporting the number of “qualified”
(or multicandidate) PACs in 2012), online at
http://www.fec.gov/data/CommitteeSummary.do (all Internet materials
as visited Mar. 28, 2014, and available in Clerk of Court’s
case file).
Using these entities,
candidates, parties, and party supporters can transfer and, we are
told, have transferred large sums of money to specific candidates,
thereby avoiding the base contribution limits in ways that Examples
Two and Three help demonstrate. See Brief for Appellee 38–39,
53–54; Brief for Campaign Legal Center, et al. as Amici
Curiae 12–15; Brief of Democratic Members of the United
States House of Representatives as Amici Curiae 28–29. They
have done so without drawing FEC prosecution—at least not
according to my (and apparently the plurality’s) search of
publicly available records. That is likely because in the real
world, the methods of achieving circumvention are more subtle and
more complex than our stylized Examples Two and Three depict. And
persons have used these entities to channel money to candidates
without any individual breaching the current aggregate $123,200
limit. The plurality now removes that limit, thereby permitting
wealthy donors to make aggregate contributions not of $123,200, but
of several millions of dollars. If the FEC regulation has failed to
plug a small hole, how can it possibly plug a large one?
IV
The plurality
concludes that even if circumvention were a threat, the aggregate
limits are “poorly tailored” to ad- dress it. Ante, at
30. The First Amendment requires “ ‘a fit that is
. . . reasonable,’ ” and there is no
such “fit” here because there are several alternative
ways Congress could prevent evasion of the base limits. Ibid.
(quoting Fox, 492 U. S., at 480). For instance, the plurality
posits, Congress (or the FEC) could “tighten . . .
transfer rules”; it could require “contributions above
the current aggregate limits to be deposited into segregated,
nontransferable accounts and spent only by their recipients”;
it could define “how many candidates a PAC must support in
order to ensure that ‘a substantial portion’ of a
donor’s contribution is not rerouted to a certain
candidate”; or it could prohibit “donors who have
contributed the current maximum sums from further contributing to
political committees that have indicated they will support
candidates to whom the donor has already contributed.” Ante,
at 33–35 (quoting 11 CFR §110.1(h)(2)).
The plurality, however,
does not show, or try to show, that these hypothetical alternatives
could effectively replace aggregate contribution limits. Indeed, it
does not even “opine on the validity of any particular
proposal,” ante, at 35—presumably because these
proposals themselves could be subject to constitutional challenges.
For the most part, the alternatives the plurality mentions were
similarly available at the time of Buckley. Their hypothetical
presence did not prevent the Court from upholding aggregate limits
in 1976. How can their continued hypothetical presence lead the
plurality now to conclude that aggregate limits are “poorly
tailored?” See ante, at 30. How can their continued
hypothetical presence lead the Court to overrule Buckley now?
In sum, the explanation
of why aggregate limits are needed is complicated, as is the
explanation of why other methods will not work. But the conclusion
is simple: There is no “substantial mismatch” between
Congress’ legitimate objective and the “means selected
to achieve it.” Ante, at 10. The Court, as in Buckley, should
hold that aggregate contribution limits are constitutional.
V
The District Court in
this case, holding that Buckley foreclosed McCutcheon’s
constitutional challenge to the aggregate limits, granted the
Government’s motion to dismiss the complaint prior to a full
evidentiary hearing. See 893 F. Supp. 2d 133, 140–141 (DC
2012). If the plurality now believes the District Court was wrong,
then why does it not return the case for the further evidentiary
development which has not yet taken place?
In the past, when
evaluating the constitutionality of campaign finance restrictions,
we have typically relied upon an evidentiary record amassed below
to determine whether the law served a compelling governmental
objective. And, typically, that record contained testimony from
Members of Congress (or state legislators) explaining why Congress
(or the legislature) acted as it did. See, e.g., McConnell, 540
U. S., at 147–154 (upholding federal restrictions on
soft money by drawing on an extensive District Court record that
contained declarations from current and former Members of
Congress); Colorado II, 533 U. S., at 457–465 (upholding
federal limits on coordinated expenditures between parties and
candidates on the basis of a summary judgment record that contained
declarations from party operatives, fundraisers, and Members of
Congress); Shrink Missouri, 528 U. S., at 393 (upholding
Missouri’s contribution limits on the basis of the lower
court record, which contained similar declarations). If we are to
overturn an act of Congress here, we should do so on the basis of a
similar record.
For one thing, an
evidentiary record can help us determine whether or the extent to
which we should defer to Congress’ own judgments,
particularly those reflecting a balance of the countervailing First
Amendment interests I have described. Determining whether
anticorruption objectives justify a particular set of contribution
limits requires answering empirically based questions, and ap-
plying significant discretion and judgment. To what extent will
unrestricted giving lead to corruption or its appearance? What
forms will any such corruption take? To what extent will a lack of
regulation undermine public confidence in the democratic system? To
what extent can regulation restore it?
These kinds of
questions, while not easily answered, are questions that Congress
is far better suited to resolve than are judges. Thus, while court
review of contribution limits has been and should be
“rigorous,” Buckley, 424 U. S., at 29, we have
also recognized that “deference to legislative choice is
warranted.” Beaumont, 539 U. S., at 155. And that
deference has taken account of facts and circumstances set forth in
an evidentiary record.
For another thing, a
comparison of the plurality’s opinion with this dissent
reveals important differences of opinion on fact-related matters.
We disagree, for example, on the possibilities for circumvention of
the base limits in the absence of aggregate limits. We disagree
about how effectively the plurality’s
“alternatives” could prevent evasion. An evidentiary
proceeding would permit the parties to explore these matters, and
it would permit the courts to reach a more accurate judgment. The
plurality rationalizes its haste to forgo an evidentiary record by
noting that “the parties have treated the question as a
purely legal one.” Ante, at 14, n. 4. But without a
doubt, the legal question—whether the aggregate limits are
closely drawn to further a compelling governmental
inter-est—turns on factual questions about whether
corruption, in the absence of such limits, is a realistic threat to
our democracy. The plurality itself spends pages citing figures
about campaign spending to defend its “legal”
conclusion. Ante, at 24–26, 27–28, 30–32. The
problem with such reasoning is that this Court’s expertise
does not lie in marshaling facts in the primary instance. That is
why in the past, when answering similar questions about the
constitutionality of restrictions on campaign contributions, we
have relied on an extensive evidentiary record produced below to
inform our decision.
Without further
development of the record, however, I fail to see how the plurality
can now find grounds for overturning Buckley. The justification for
aggregate contribution restrictions is strongly rooted in the need
to assure political integrity and ultimately in the First Amendment
itself. Part II, supra. The threat to that integrity posed by the
risk of special access and influence remains real. Part III, supra.
Even taking the plurality on its own terms and considering solely
the threat of quid pro quo corruption (i.e., money-for-votes
exchanges), the aggregate limits are a necessary tool to stop
circumvention. Ibid. And there is no basis for finding a lack of
“fit” between the threat and the means used to combat
it, namely the aggregate limits. Part IV, supra.
The plurality reaches
the opposite conclusion. The re- sult, as I said at the outset, is
a decision that substitutes judges’ understandings of how the
political process works for the understanding of Congress; that
fails to recognize the difference between influence resting upon
public opinion and influence bought by money alone; that overturns
key precedent; that creates huge loopholes in the law; and that
undermines, perhaps devastates, what remains of campaign finance
reform.
With respect, I
dissent.
APPENDIXES
A
Existence of Large Donations
Expert Report: “During the 1996 election
cycle, the top 50 nonfederal money donors made contributions
ranging from $530,000 to $3,287,175. . . . Soft money financing of
party campaigning exploded in the 2000 election cycle. Soft money
spending by the national parties reached $498 million, now 42% of
their total spending. Raising a half billion dollars in soft money
[in 2000] took a major effort by the national parties and elected
officials, but they had the advantage of focusing their efforts on
large donors. . . . The top 50 soft money donors . . . each
contributed between $955,695 and $5,949,000.” 251
F. Supp. 2d, at 440 (opinion of Kollar-Kotelly, J.) (citing T.
Mann Expert Report, pp. 22, 24–25)
Candidate Solicitation of Large Donations
Judicial Finding of Fact: “It is a common
practice for Members of Congress to be involved in raising both
federal and non-federal dollars for the national party committees,
sometimes at the parties’ request. The personal involvement
of high-ranking Members of Congress is a major component of raising
federal and nonfederal funds.” 251 F. Supp. 2d, at
471.
Senator Paul Simon: “ ‘While I
was in Congress, the Democratic Congressional Campaign Committee
(DCCC) and the Democratic Senatorial Campaign Committee (DSCC)
would ask Members to make phone calls seeking contributions to the
party. They would assign me a list of names, people I had not known
previously, and I would just go down the list. I am certain they
did this because they found it more effective to have Members make
calls.’ ” Ibid. (quoting Simon Decl. ¶7).
Senator John McCain: “ ‘[T]he
parties encourage Members of Congress to raise large amounts of
soft money to benefit their own and others’ re-election. At
one recent caucus meeting, a Member of Congress was praised for
raising $1.3 million dollars for the party. James Greenwood, a
Republican Congressman from Pennsylvania, recently told the New
York Times that House leaders consider soft money fundraising
prowess in assigning chairmanships and other sought-after jobs. . .
. I share Mr. Greenwood’s concerns.’ ” Id., at
476 (quoting McCain Decl. ¶7).
Representative Christopher Shays:
“ ‘Soft money is raised directly by federal
candidates, officeholders, and national political party leaders.
National party officials often raise these funds by promising
donors access to elected officials. The national parties and
national congressional campaign committees also request that
Members of Congress make the calls to soft money donors to solicit
more funds.’ ” Id., at 471 (quoting Shays Decl.
¶18).
Representative Marty Meehan:
“ ‘Members of Congress raise money for the
national party committees, and I have been involved in such
fund-raising for the Democratic Party. At the request of the Party
Members of Congress go to the [DCCC] and call prospective donors
from lists provided by the Party to ask them to participate in
Party events, such as DCCC dinners or Democratic National Committee
(DNC) dinners. These lists typically consist of persons who have
contributed to the Democratic Party in the
past.’ ” 251 F. Supp. 2d, at 471 (quoting
Meehan Decl. in Republican National Committee v. FEC, No.
98–CV–1207 (DC), ¶6).
Lobbyist: “ ‘Even though soft
money contributions often go to political parties, the money is
given so that the contributors can be close to, and recognized by,
Members, Presidents, and Administration officials who have power.
Mem- bers, not party staffers or party chairs, raise much of the
large soft money contributions.’ ” 251
F. Supp. 2d, at 472 (quoting Robert Rozen Decl. ¶15, a
partner in a lobbying firm).
Senator Fred Thompson: “ ‘We
have gone from basically a small donor system . . . where
the average person believed they had a stake, believed they had a
voice, to one of extremely large amounts of money, where you are
not a player unless you are in the $100,000 or $200,000 range [or
more] . . . .’ ” Id., at 433 (quoting 147 Cong.
Rec. 4622 (2001)).
Former DNC official: “Former DNC and DSCC
official and current lobbyist Robert Hickmott testifies that even
incumbents with safe seats have incentives to raise money for the
parties. He explains: ‘Incumbents who were not raising money
for themselves because they were not up for reelection would
sometimes raise money for other Senators, or for challengers. They
would send $20,000 to the DSCC and ask that it be entered on
another candidate’s tally. They might do this, for example,
if they were planning to run for a leadership position and wanted
to obtain support from the Senators they assisted. This would
personally benefit them, in addition to doing their part to help
retain Democratic control of the Senate, which would preserve the
legislative power of all Democratic senators.’ ”
251 F. Supp. 2d, at 475–476 (quoting Hickmott Decl.,
Exh. A ¶18).
Judicial Finding of Fact: “The DSCC
maintains a ‘credit’ program that credits nonfederal
money raised by a Senator or candidate to that Senator or
candidate’s state party. Amounts credited to a state party
can reflect that the Senator or candidate solicited the donation,
or can serve as a donor’s sign of tacit support for the state
party or the Senate candidate.” 251 F. Supp. 2d, at
477 (citation omitted).
Judicial Finding of Fact: “Federal
candidates also raise nonfederal money through joint fundraising
committees formed with national committees. One common method of
joint fundraising is for a national congressional committee to form
a separate joint fundraising committee with a federal candidate
committee. . . . Two experts characterize the joint fundraising
system as one ‘in which Senate candidates in effect
raise[ ] soft money for use in their own
races.’ ” Id., at 478 (quoting J. Krasno and F.
Sorauf Expert Report, p. 13; citation omitted).
Donor Access and Influence
Judicial Finding of Fact: “The fact that
Members of Congress are intimately involved in the raising of money
for the political parties, particularly unlimited nonfederal money
donations, creates opportunities for corruption. The record does
not contain any evidence of bribery or vote buying in exchange for
donations of nonfederal money; however, the evidence presented in
this case convincingly demonstrates that large contributions,
particularly those nonfederal contributions surpassing the federal
limits, provide donors access to federal lawmakers which is a
critical ingredient for influencing legislation, and which the
Supreme Court has determined constitutes corruption.” 251
F. Supp. 2d, at 481.
Judicial Finding of Fact: “Individual
donors testify that contributions provide access to influence
federal officeholders on issue of concern to them.” Id., at
498.
Political donor: “ ‘I’ve
been involved in political fundraising long enough to remember when
soft money had little value to federal
candidates. . . . [I]n recent election cycles,
Members and national committees have asked soft money donors to
write soft money checks to state and national parties solely in
order to assist federal campaigns. Most soft money donors
don’t ask and don’t care why the money is going to a
particular state party, a party with which they may have no
connection. What matters is that the donor has done what the Member
asked.’ ” Id., at 472 (quoting Wade Randlett,
Chief Executive Officer, Dashboard Technology, Decl.
¶¶6–9).
Political donor: “ ‘As a
result of my $500,000 soft money donation to the DNC, I was offered
the chance to at- tend events with the President, including events
at the White House, a number of times. I was offered special ac-
cess. . . .’ ” 251 F. Supp.
2d, at 499 (quoting Arnold Hiatt Decl. ¶9).
Senator Alan Simpson: “ ‘Too
often, Members’ first thought is not what is right or wrong
or what they believe, but how will it affect fundraising. Who,
after all, can seriously contend that a $100,000 donation does not
alter the way one thinks about—and quite possibly votes
on—an issue? . . . When you don’t pay the
piper that finances your campaigns, you will never get any more
money from that piper. Since money is the mother’s milk of
politics, you never want to be in that
situation.’ ” 251 F. Supp. 2d, at 481
(quoting Simpson Decl. ¶10).
Senator Alan Simpson: “ ‘Large
donors of both hard and soft money receive special treatment. No
matter how busy a politician may be during the day, he or she will
always make time to see donors who gave large amounts of money.
Staffers who work for Members know who the big donors are, and
those people always get their phone calls returned first and are
allowed to see the Member when others are not.’ ”
251 F. Supp. 2d, at 481–482 (quoting Simpson Decl.
¶9).
Senator David Boren:
“ ‘Donations, including soft money donations to
political parties, do affect how Congress operates. It’s only
natural, and happens all too often, that a busy Senator with 10
minutes to spare will spend those minutes returning the call of a
large soft money donor rather than the call of any other
constituent. . . . I know from my first-hand experience and from my
interactions with other Senators that they did feel beholden to
large donors.” 251 F. Supp. 2d, at 482 (quoting Boren
Decl. ¶¶7–8).
Senator Dale Bumpers: “[Senator Bumpers]
had ‘heard that some Members even keep lists of big donors in
their offices,’ and [stated] that ‘you cannot be a good
Democratic or good Republican Member and not be aware of who gave
money to the party.’ ” 251 F. Supp. 2d, at
487 (quoting Bumpers Decl. ¶¶18, 20).
Representative Christopher Shays:
“ ‘The candidates know who makes these huge
contributions and what these donors expect. Candidates not only
solicit these funds themselves, they meet with big donors who have
important issues pending before the government; and sometimes, the
candidates’ or the party’s position appear to change
after such meetings.’ ” 251 F. Supp. 2d, at
487 (quoting 148 Cong Rec. 1305 (2002)).
Senator Warren Rudman:
“ ‘Large soft money contri-butions in fact distort
the legislative process. They affect what gets done and how it gets
done. They affect whom Senators and House members see, whom they
spend their time with, what input they get . . .
.’ ” 251 F. Supp. 2d, at 496 (quoting Rudman
Decl. ¶¶7, 9).
Senator Paul Simon: “ ‘While I
realize some argue donors don’t buy favors, they buy access.
That access is the abuse and it affects all of us. . . . You feel a
sense of gratitude for their support. . . . Because few people can
afford to give over $20,000 or $25,000 to a party committee, those
people who can will receive substantially better access to elected
federal leaders than people who can only afford smaller
contributions or can not afford to make any contributions. When you
increase the amount that people are allowed to give, or let people
give without limit to the parties, you increase the danger of
unfair access.’ ” 251 F. Supp. 2d, at 496
(quoting Simon Decl. ¶16).
Senator John McCain: “ ‘At a
minimum, large soft money donations purchase an opportunity for the
donors to make their case to elected officials . . . in a way
average citizens cannot.’ ” 251 F. Supp. 2d,
at 496 (quoting McCain Decl. ¶6).
Senator Warren Rudman: “ ‘I
understand that those who opposed passage of the Bipartisan
Campaign Reform Act, and those who now challenge its
constitutionality in Court, dare elected officials to point to
specific [instances of vote buying]. I think this misses the point
altogether. [The access and influence accorded large donors] is
inherently, endemically, and hopelessly corrupting. You can’t
swim in the ocean without getting wet; you can’t be part of
this system without getting dirty.’ ” 251
F. Supp. 2d, at 481 (quoting Rudman Decl. ¶10).
Judicial Finding of Fact: “Lobbyists
state that their clients make donations to political parties to
achieve access.” 251 F. Supp. 2d, at 489.
Letter from Republican National Committee (RNC)
staffer: “ ‘As you know, [this executive] has been
very generous to the RNC. If there is any way you can assist [in
obtaining an appointment with an important Senator], it would be
greatly appreciated.’ ” Id., at 501 (quoting
Memorandum from Tim Barnes, RNC, to Royal Roth).
Letter from RNC: “[The] letter from RNC
to Senator Hagel staffer [asks] Senator Hagel to meet with a donor
for four ‘key’ reasons including: . . . ‘[h]e
just contributed $100,000 to the RNC.’ ” Ibid.
(quoting a letter in the judicial record).
Judicial Finding of Fact: “The political
parties have structured their donation programs so that donors are
encouraged to contribute larger amounts in order to get access to
more exclusive and intimate events at which Members or Congress are
present. The evidence also shows that the parties use the
enticement of access to secure larger donations. ” Id., at
502 (quoting a document in the judicial record).
B
Table 1: Donations to Support the Party
Base Limit
(per year)
Number
(committees)
Years
Total Contributions (per 2-year cycle)
National Party Committees
$32,400
3
2
$194,400
State Party Committees
$10,000
50
2
$1,000,000
Total
$1,194,400
Source: See 2
U. S. C. §§441a(a)(1)(B), (D); 78 Fed. Reg.
8532.
Table 2(a): The $3.6 Million Check
Base Limit
(per year/ election)
Number
(committees/ candidates)
Years
or Elections
Total Contribu-tions
(per 2-year cycle)
National Party Committees
$32,400
3
2
$194,400
State Party Committees
$10,000
50
2
$1,000,000
Candidates (Senate)
$2,600
33
2
$171,600
Candidates (House)
$2,600
435
2
$2,262,000
Total
$3,628,000
Source: See 2
U. S. C. §§441a(a)(1)(A), (B), (D); 78 Fed.
Reg. 8532.
Table 2(b): Circumvention of the $3.6 Million
Check
Direct Contributions to Candidate (per
election)
Number
(committees/ candidates)
Elec-tions
Total Direct Contributions (per 2-year
cycle)
National Party Committees
$5,000
3
2
$30,0001
State Party Committees
$5,000
50
2
$500,000
Candidates (Senate)
$2,000
33
2
$132,000
Candidates (House)
$2,000
435
2
$1,740,000
Total Direct Contributions
$2,372,000
Independent Expenditures (IEs)
(per general election)
Elec-tions
Total IEs (per general election)
House Candidate
Senate Candidate
National Party Committees
$46,600 (min)2
$94,100 (min)3
1
$46,600–
$93,100
(min)
State Party Committees
$46,600
(min)2
$94,100 (min)3
1
$46,600–$93,100 (min)
Total IEs
$46,600
(min)2
$94,100 (min)3
$46,600–$93,100 (min)
1 $45,400 for a
Senate candidate. §441a(h); 78 Fed. Reg. 8532.
2 If the State
has more than one House seat, this figure is $46,600. If it has one
House seat, this figure is $93,100. Id., at 8531.
3 This figure
ranges from $93,100 (Del.) to $2,68 million (Cal.), depending on
the State’s population. Ibid.
Source: See 2
U. S. C. §§432(e)(3)(B), 441a(a)(2)(A); 11 CFR
§110.3(b); 78 Fed. Reg. 8530–8532.
Table 3: Proliferating PACs
Base Limit (per year)
Number (PACs)
Years
Total Contributions (per 2-year cycle)
Rich Donor One
$5,000
200
2
$2,000,000
Rich Donor Two
$5,000
200
2
$2,000,000
Rich Donor Three
$5,000
200
2
$2,000,000
Rich Donor Four
$5,000
200
2
$2,000,000
Rich Donor Five
$5,000
200
2
$2,000,000
Rich Donor Six
$5,000
200
2
$2,000,000
Rich Donor Seven
$5,000
200
2
$2,000,000
Rich Donor Eight
$5,000
200
2
$2,000,000
Rich Donor Nine
$5,000
200
2
$2,000,000
Rich Donor Ten
$5,000
200
2
$2,000,000
Total Contributions to PACs (by 10 Donors)
$20,000,000
Total Contributions by Each Donor
$2,000,000
Base Limit (per election)
Number (candi-dates)
Elec-tions
PAC One
$5,000
10
2
$100,000
PAC Two
$5,000
10
2
$100,000
PAC Three
$5,000
10
2
$100,000
. . .
etc.
etc.
etc.
etc.
PAC 200
$5,000
10
2
$100,000
Total Contributions by PACs (to 10
Candidates)
$20,000,000
Total Contributions to Each Candidate
$2,000,000
Source: 2
U. S. C. §§441a(a)(1)(C), 441a(a)(2)(A).
C
Table 1: Costs of a Federal Seat
2012 Elections
House
Average House Winner Spent
$1,567,293
Average House Loser Spent
$496,637
Average Winner's Receipts from PACs
$665,728
Senate
Average Senate Winner Spent
$11,474,077
Average Senate Loser Spent
$7,435,446
Average Winner's Receipts from PACs
$2,185,650
Source: Center for
Responsive Politics, Election Stats, online at
http://www.opensecrets.org/bigpicture/elec_stats.php.
Table 2: Leadership PACs
Number of Leadership PACs
(contributing to federal candidates)
Total Contributed (to federal candidates)
2000 Elections
175
$17,000,000
2002 Elections
228
$25,000,000
2004 Elections
274
$30,700,000
2006 Elections
336
$44,700,000
2008 Elections
378
$40,600,000
2010 Elections
396
$44,000,000
2012 Elections
456
$46,400,000
Source: Center for
Responsive Politics, Leadership PACs, online at
http://www.opensecrets.org/pacs.
Table 3: Joint Fundraising Committees
Number of Joint Fundraising Committees
“Senate” Related
“House”
Related
2008 Elections
269
31
34
2010 Elections
367
37
60
2012 Elections
508
67
89
Source: Federal
Election Commission, online at
http://www.fec.gov/data/CommitteeSummary.do.