Campaign Finance's Not-So-Final Exam

By Associate Professor Justin Levitt

This op-ed originally appeared on Jurist

For better or worse, a professor's thoughts are never far from final exams. The best exams, I think, test students' understanding not just of the governing rules, but the legal rationales that drive them. And it's no secret that in devising hypothetical questions for exams, professors often turn to potential scenarios that they've otherwise been mulling: scenarios that present tricky issues forcing the better students to dig beneath the surface. Often, these exam issues are drawn from pending or recent cases.

For better or worse, a professor's thoughts are never far from final exams. The best exams, I think, test students' understanding not just of the governing rules, but the legal rationales that drive them. And it's no secret that in devising hypothetical questions for exams, professors often turn to potential scenarios that they've otherwise been mulling: scenarios that present tricky issues forcing the better students to dig beneath the surface. Often, these exam issues are drawn from pending or recent cases.

And sometimes, the cases -- like the Supreme Court's decision last week to hear McCutcheon v. FEC -- are drawn from the exams.

In May 2011, I asked the following question on my election law exam:

Federal law imposes aggregate limits on individual campaign contributions over a two-year period. Individuals may not contribute more than $46,200 (total) to federal candidates, with no more than $2,500 to any single candidate. (These limits pertain to contributions to federal candidates only, and do not include separate limits on the aggregate amounts that individuals may give to PACs and political parties.)

Clark Tuckerberg is a social media entrepreneur and multi-billionaire. He has "friended" more than 200 members of Congress and more than 30 US Senators on Facebook -- and he would like to demonstrate that, to him, "friending" is a real commitment. He acknowledges that he may not give more than $2,500 to any single candidate. However, he would like to give $2,500 to each of the candidates that he has "friended," which would put him well over the aggregate limit.

Tuckerberg files suit, challenging the aggregate $46,200 limit on contributions to federal candidates, under the First Amendment. He does not challenge either the $2,500 limit on contributions to any individual candidate or any limits on contributions to parties or PACs.

You are clerking for the judge assigned to hear the case.

The judge acknowledges that the Supreme Court addressed the issue of aggregate contribution limits in six short sentences of Buckley v. Valeo. Yet with a twinkle in her eye, she suggests that the Court's recent stance toward campaign finance precedent suggests that it may be unwise to rely solely on six cursory sentences of a thirty-year-old opinion. She cautions that she has no view on whether the limit is constitutional or not. But she would like you to analyze the issue as an original matter, without relying on the cursory treatment of the issue in Buckley.

Evaluate whether Tuckerberg's challenge to the aggregate $46,200 contribution limit is likely to succeed, and why.

On August 31, 2012, real-live Virginia James stepped into the shoes of my entirely fictional Clark Tuckerberg. In her complaint, captioned as James v. FEC, she challenged the same aggregate contribution limit that Tuckerberg resented.

On Halloween last year, the US District Court for the District of Columbia rejected James' challenge, in an opinion with far more meat than the limited treatment that the issue received in Buckley. The court's opinion turned largely on the role of the aggregate limit in stemming corruption arising out of candidates' transfers to each other. That same issue was at the heart of a companion case, McCutcheon v. FEC, challenging the aggregate limit on giving not only to candidates, but also to political action committees (PACs) and parties; McCutcheon was filed two months before James and was decided -- upholding the limit -- at the end of September.

Under an unusual procedure largely reserved at this point for election-related cases, McCutcheon was heard by a three-judge federal trial court, the decisions of which are appealed directly to the Supreme Court. This appeal is an appeal by right, not a request for certiorari: the decision can be summarily affirmed or summarily reversed, or the court may hear argument and write more extensively. But, much like my students, the Court cannot chose to avoid the issue entirely.

On Tuesday, the Court agreed to hear more from the parties on McCutcheon, which likely means a more extensive decision. Professor Rick Hasen rightly notes that this is a significant step -- and the blogosphere is on fire with predictable predictions that the Court is poised to upend campaign finance law once again. But I think the real significance may be different than the primary chatter indicates. And I think much will depend on the other shoe, yet to drop: what happens to James.

Hasen, and plenty of others, have correctly noted that in reviewing McCutcheon, it is possible that the Court will revisit its approach to the constitutionality of contribution limits more generally: a wholesale change to the basic rules of the game. Certainly, the Court has, in the past, taken small cases and turned them into big ones. But not every tremor portends a Vesuvius.

Revising the overall approach to contributions is in no way necessary to deal with the issue in McCutcheon. Currently, the Court looks much more closely at limits on expenditures (which involve direct payments for expression) than at limits on contributions (which involve expression only by proxy). But even though looking at the justification for contribution limits involves reading glasses and not an electron microscope, a review with reading glasses is still meaningful. It is entirely possible for the Court to take a firm look at the contribution limits in McCutcheon without upping the general prescription.

Similarly, Hasen notes that reviewing McCutcheon involves a review of part of the landmark Buckley v. Valeo case. But as I suggested in my exam, the aggregate limits are a part of the case that got little attention from the Court at the time: six sentences of 294 total pages. There are many ways in which the Court could address the constitutionality of the aggregate limits, including the justification for those limits, that leave intact the essential Buckley "settlement": a harder look at limits on expenditures than contributions and ample reasons to limit contributions in order to prevent corruption. Even though the issue in McCutcheon was addressed by the Buckley Court, there is no reason that a finding for the plaintiffs has to amount to an unraveling of Buckley more broadly.

Instead, the real significance of the case may come with a decision whether to hear James at the same time. James is about contributions to candidates, and the potential for one donor to corrupt candidate X by contributing amounts that are individually unsuspicious to 20 other candidates, all of whom give chunks of that cash over to X. McCutcheon concerns candidates as well, but adds the complicating factors of party committees and PACs -- artificial entities that can be formed at will, each of which can receive more money per person, and for whom there may be significantly more reason to act as a conduit. There are far more reasons for Congress to be concerned about contributions to parties and PACs -- and for the Court to credit those concerns -- than for it to regulate Tuckerberg's contributions to his "friends." But it is easier to lose sight of the most significant elements in McCutcheon if James is not also before the Court to focus attention on the distinct roles that PACs and parties play.

The Court has not yet decided what to do with James: whether to hold it, address it summarily or hear it with McCutcheon. Its decision could well signal what aspects of the case have drawn the Court's attention.

It's one exam answer that should be particularly interesting to grade.