Symposium: Aggregate limits and the fight over frame

The following essay is part of our online symposium on McCutcheon v. Federal Election Commission.

Photographs purport to show objective facts.  But whether they illuminate or distort our understanding of the world depends entirely on choices — of lens, of frame — that the photographer has made.

Much of constitutional law is the same: the choice of lens and frame drives the Supreme Court’s understanding of our rights and obligations.  Without recognizing this truth, it is virtually impossible to understand the Court’s campaign finance jurisprudence.

McCutcheon v. Federal Election Commission offers a dizzying fight over lens and frame. The briefs presented to the Court zoom from micro to macro and back, often within sentences of the same brief.

The basic structure of the reason for the fight, at least, is clear. McCutcheon is about aggregate caps on contributions to federal candidates, party committees, and PACs that donate to candidates and parties. There are limits on what I can give to any individual federal candidate.  And then there are limits on what I can give to all federal candidates, total. The same is true for parties and PACs. This case is about the totals.

From the flattest perspective, this case has already been decided.  This case challenges aggregate limits.  Buckley v. Valeo (1976), the progenitor of the modern campaign finance regime, upheld a system of aggregate limits. Easy.

How to view aggregate limits

Much too easy.  Buckley’s 294 pages cover the entirety of the landmark Federal Election Campaign Act.  It gave aggregate limits six sentences.  Two of the six were devoted to describing the limits.  One noted that the issue had “not been separately addressed at length by the parties.”  Three more disposed of the substance.  This Court is unlikely to believe that its focus is confined by those three sentences.  (Similarly, granting cert. to revisit these three sentences provides little reason to believe that the Court is interested in revisiting Buckley entirely.)

Another shallow lens simply looks to conventional wisdom, and the caricature of a relentlessly deregulatory Court.  Citizens United looms, larger than life. Like Citizens United, the legislation challenged in McCutcheon also constrains campaign-related cash.  And like Citizens United, the challenge has been brought in part by James Bopp, who has a remarkable record before the Court.  Easy.

And also, too easy.  Most of the Court’s recent deregulatory decisions have involved expenditures: money that I spend to create and distribute a message, like a movie about Hillary Clinton. The Court has been far less eager to strike down restrictions on contributions: money that I give to a candidate to spend on her campaign as he or she pleases.

This distinction between expenditures and contributions creates an odd policy environment.  But through Buckley’s rights-based frame, it has its own – quite stable – logic.

Buckley, in essence, decided that my interest in speaking vigorously about politics is at the core of the First Amendment’s protections. And no government interest presented in the case was sufficiently strong to override that right. In contrast, any speech interest in giving money to a candidate is derivative; any associative interest is easily promoted in other ways. And there is a real danger that politicians will do legislative favors for me if I agree to give them suitcases of cash.

It’s not that my taking out an ad favoring a candidate won’t encourage the candidate to do me favors. I know, I know: Justice Anthony Kennedy said differently in Citizens United v. Federal Elections Commission (2010). But he didn’t really mean it. Just one year earlier, his Caperton v. A. T. Massey Coal Co. (2009) decision was built entirely on the understanding that a large amount of independent campaign spending could trigger improper official behavior.

What squares those unsquareable circles is really that my ability to add my unique message to the political debate is just too important to shut down.  Giving money to a candidate is less constitutionally fundamental, and because more directly valuable to the candidate, more likely to inspire venality.  And so expenditure regulations are put under a microscope, while contribution regulations just get the reading glasses.

Which brings us back to McCutcheon. As I’ve explained elsewhere, this is clearly a reading-glasses case. In a two-year cycle, I may give no more than $48,600 to federal candidates  (in $5,200 chunks) and $48,600 to PACs that give to candidates (in $10,000 chunks). That’s not an imposition as substantial as a restriction on putting out my own message, but it’s still an imposition that must be justified.

The plaintiffs focus their frame narrowly on the incremental donation, and find no valid reason for the cap. If giving $5,200 to each of nine candidates doesn’t buy me their legislative votes, then giving $5,200 to a tenth candidate can’t buy his vote either; if giving $10,000 to each of four PACs doesn’t create a problem, then giving $10,000 to the fifth PAC can’t do so either. On its face, it’s a straightforward argument, un-rebutted by assertions of the generic danger of “big-money corruption.”

Senator Paine’s PACs

Put a little political ingenuity in the picture, though, and possibilities become clearer. Imagine Senator Joseph Paine’s former chief of staff starts a PAC called People-Like-Paine, donating to candidates who share the senator’s values. Paine’s neighbor likes the idea, and starts People-Like-Paine2. Paine’s former campaign manager starts People-Like-Paine3. One Hundred more crop up; even without an exchange of memos, it’s not hard to recognize a good idea. I give $10,000 to each of them. They each donate the max to Paine … and let him know about my generosity. He ends up with a large suitcase of cash with my name on it.

What makes this possible is that PACs can pop into existence at any time. Existing rules limit the degree to which one parent can just manufacture different PACs, but they (properly) avoid lumping distinct like-minded groups together. That creates space for clever financiers to work toward the same end without working in concert. Aggregate limits limit the size of any resulting suitcase. But to see this, you have to zoom back a bit.

That said, the prospect of PeopleLikePaine100 is unique to a PAC. Plaintiffs seem to have a slightly better case with respect to candidates – each of whom has competing incentives to retain, rather than transfer, incoming funds (from their campaign accounts, at least; leadership PACs are a different story). And they seem to have a better case still with respect to national party committees (there are only three for each party: one national, one Senate, one House).

Party favors

Until, perhaps, you zoom out a bit more. Party leaders rise and fall on the success they are able to produce for the party as a whole. Giving $5,200 to each of 100 different candidates may not provoke a favor from the 101st candidate on the list. But that sort of generosity matters to the leadership. The value of funding not just some Democrats or Republicans, but rather the Democrats or Republicans as a whole, may well be worth more than the sum of its parts. It’s not hard to imagine leaders’ incentive to give special legislative favors for donors willing to give maximal support to all of the party’s candidates. Or their incentive to let it be known that donors will need to pony up that sort of support to get a meeting.

The role of political leadership in the picture is, curiously, not one that has been emphasized in any brief to the Court. It is also, admittedly, a proposition difficult to test. The very limits challenged in this case have prevented the possibility of subsidizing an entire federal party. I don’t know the extent to which states without aggregate limits have seen danger signs of such activity, and I don’t know whether the scale of potential reward simply makes party-wide sugar-daddy status a less tempting proposition with respect to state officials. And I don’t know the extent to which any of this will matter to the Court. The Court’s requirement for evidence of present problems to justify electoral regulation has been uneven at best.

It is not easy to know how far the Court will zoom, in or out or sideways – or, indeed, which perspective is most proper. An overly narrow focus blinds the Court to the bigger picture; an overly broad one looks a lot like Buckley’s cursory wave of the hand.  And the Court has rarely done more than dabble in either armchair political theory or armchair political science.

The final frame?

Perhaps one aspect of the case will end up framing the whole. Aggregate contribution limits do not affect independent spending, and they do not stop any individual from expressing a modicum of support for all 535 members of Congress, or indeed, every single one of those representatives’ challengers. There is little reason to believe that aggregate limits systematically favor the electoral fortunes of incumbents, or make it difficult for any individual candidate to run a campaign. Their most notable impact seems to fall on political parties with multiple competitive campaigns to feed (and party-wide SuperPAC ads to refute).

But these parties rarely need the Court to save them from the legislature. They are already amply represented in Congress, and could lawfully repeal the limits at any time. Instead, they have – at least for now — tied themselves to the mast. It is possible that that image will be the one the Justices end up finding most compelling.

Justin Levitt is an associate professor of law at Loyola, Los Angeles, School of Law.