“Today’s decision will have a limited effect in the near term...But the long term implications are much greater”
In a 5-4 ruling on McCutcheon v. Federal Election Commission, the Supreme Court on Wednesday struck down the aggregate limit an individual can donate to political candidates and parties in an election cycle. The Court’s decision struck down a $46,200 ceiling on contribution for federal candidates and a $70,800 aggregate limit to entities such as political parties or committees. Venable partners Ron Jacobs and Larry Norton reacted to the Court’s ruling in multiple publications including the April 2, 2014 editions of Law360, Forbes, and Crain’s New York. Norton was interviewed on SiriusXM Progress’ The Agenda with Ari Rabin-Havt on April 3. Jacobs and Norton offered additional commentary on the ruling in their Political Law Briefing blog.
In a statement to Law360, Jacobs and Norton said, “Today’s decision will have a limited effect in the near term. We expect few individuals will immediately rush out and start writing checks to all congressional candidates. More will likely start giving to additional party committees. But the long term implications are much greater. We see the court crafting a very narrow justification for restrictions on political giving tied to quid pro quo corruption and nothing else. This narrow justification will likely be used to bring further challenges to campaign finance restrictions. Yet, the court also strongly affirms disclosure as a solution; we expect to see states impose additional disclosure requirements on political giving.”
Commenting further on quid pro quo corruption in a second Law360 article, Norton said, “It’s a pretty high bar,” adding, “On the other hand, we tell our clients all the time to be very careful, particularly about email and internal communications, but even in making contributions or sending contributions to candidates, to be very careful about saying or implying that contribution is related to a pending matter…It’s not as unusual as you might think for that kind of sentiment to be expressed.”
Speaking with Forbes, Jacobs said, “What I don’t think people will do is write a check to every single candidate, because you’re kind of throwing your money away…Why waste your money on a safe district, when you could fund a 501(c)4 where there’s a contested race?” Jacobs cautioned that the decision could spell trouble for campaign finance reformers. “Typically the court will declare its support for precedent by declaring why a previous decision was well-reasoned or deserves to be treated as good law,” he said. While the Court’s decision, written by Chief Justice John Roberts, did not attack the $2,600 cap on individual races, “he also didn’t say why that limit would withstand strict scrutiny.”
In an interview with Crain’s New York Jacobs spoke about the effects of the ruling on New York’s donation laws which set an annual donation limit of $5,000 for corporations and $150,000 for individuals. Jacobs said the Supreme Court has upheld the federal ban on corporate contributions but that could change under Roberts Court. “If you want to get rid of the $5,000 limit, my sense is that you'd have to go for the jugular and out-and-out overturn the corporate contribution ban.” The Court’s decision is likely to lead to new suits challenging the New York limits.