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The Basic Difference Between Campaign Contributions and Expenditures: A Reply to Bob Bauer

July 31, 2013

Bob Bauer tries, once again, to complicate the campaign contribution-expenditure distinction, suggesting that our brief on behalf of Professor Lawrence Lessig missed the key issue in McCutcheon v. FEC, next Term’s upcoming sequel to Citizens United.   While there may be cases in which the line between the two forms of regulation is blurred (such as instances in which a candidate donates money to his or her own campaign), McCutcheon isn’t one of them.  The federal law aggregate contribution limits at issue in McCutcheon permit an individual to make a total of $123,200 in campaign contributions per election cycle ($48,600 to candidates and $74,600 to parties and non-party political committees).  If this sounds and looks like a contribution limit, that’s because it is one.  Shaun McCutcheon is free to spend as much as he likes on campaign ads for as many candidates or political parties as he likes, but he may not make an unlimited amount of political contributions.  The very reason for these limits – as well as the longstanding distinction between expenditures and contributions – is that a system of unlimited financial contributions can breed a corrupting dependence on high dollar donors. 

The best that Bauer can muster is that the limits at issue in McCutcheon restrict the total amount an individual may spend on campaign contributions.  This is silly word play and it does not make his case for the simple reason that the contribution limits in no way prevent McCutcheon from spending money on independent efforts to elect the candidates of his choice. The Supreme Court was not fooled by this argument in Buckley v. Valeo, when it upheld an earlier version of the aggregate limits challenged by McCutcheon, describing them as “no more than a corollary of the basic individual contribution limitation.”  Neither should the Roberts Court be in McCutcheon

Bauer’s unrelenting focus on the expenditure-contribution distinction not only misses the point, but it obscures our brief’s powerful originalist case, which demonstrates that Citizens United’s cramped understanding of corruption has no basis in the Constitution and that, under the Framers’ conception of corruption, the aggregate limits should be upheld.  Bauer is correct in noting that our brief does not spend much time parsing the nuances of the limits on candidates, parties, and other political committees.  We left that job to the parties and other amici, in part because the history shows that the Court should err (if at all) on the side of upholding a statute designed to combat the very sort of improper dependence on outside forces that the Framers wrote the Constitution to check.  If the Justices follow the Constitution’s text and history, they will uphold these limits and begin to correct the grievous errors of Citizens United.

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