The Center for Responsive Politics and the Sunlight Foundation have teamed up to preview the consequences if the Supreme Court in McCutcheon eliminates the biennial aggregate limit. Their work is the latest of a number of analyses predicting trouble without the limit.  It is also the most recent of its kind to exhibit the flaws in these predictions—and to suggest that the real concern with McCutcheon may lie elsewhere.

The CRP/Sunlight argument is made up of two parts. In the first, the authors make their case for the dangers of permitting contributions to exceed the limit, based on an episode in the past when certain contributors from the senior ranks of the business community gave more than the aggregate amount allowed. The second part discusses a world where there is no limit and identifies specific contributors with various interests before or in the government who, nearing their limit now, might be expected “most likely to exceed” the $123,200 limit of current law.

As for the first part: the authors refer to an enforcement matter concluded by the Federal Election Commission that resulted in the payment of penalties by various donors who exceeded the aggregate limit in effect at the time—$25,000. Before Congress at the time was a proposal for ending the favorable tax treatment of leveraged buyouts. The authors imply that these donors got a bit ahead of themselves, spending more than the limit permitted, but apparently with some success: no change in the law against their interest was made.

As it turns out, the fines the Commission imposed for these various violations ranged from $800 to $19,800. The punishment was slight because the money spent in violation of the law was generally modest in amount. The highest amount by which the limit was exceeded was $47,050. Other violations were considerably smaller and included, for example, excessive spending of $13,680, $7,000 and $4,680.  It is hard to imagine that excess contributions on this scale helped block the major pending legislation that they may have been concerned about. If so, then contrary to the warnings of the CRP/Sunlight authors, we need not worry that if the limit is removed, donors will be compelled to spend millions of dollars through joint fundraising committees to pursue their legislative objectives. It seems, on the example offered, that influence can be bought much more cheaply.

The second part of the argument largely tracks the claim now widely in circulation that in the absence of the limit, donors can begin to contribute millions of dollars. They can give to all the national party committees, all candidates and all state parties. Why this would be necessary to accomplish anybody’s influence-buying purposes—why, for example, the work of persuading an elected official from Vermont would require or benefit from a contribution to the Kansas state party—is open for debate.  And there are legal hazards in this course that are routinely disregarded in this line of analysis.

The authors of the CRP and Sunlight study argue that in the absence of the aggregate limit, a donor could still contribute a fair amount directly to politicians’ campaigns.  The example given is a single donor contributing in the maximum amount to each of the members of the key committee. True: but even under current law, a donor could give, say, almost all of the 22 members of the Senate Banking Committee or another large committee a full contribution for the general election.  The aggregate limit would leave them just $8600 short. And this is assuming that the best, strategic use of their money would be spreading full general election contributions among all committee members.

But let’s assume that the $8600 left is money they would like to be able to provide. They could raise it, as bundlers, and as much more as they pleased. The CRP/Sunlight authors ignore bundling but they do concede that super PACs now loom in the wings even with the current aggregate limit in effect. In other words, a resourceful donor does not need to await the McCutcheon decision to fund substantial financial support for the key members of any jurisdictional committee.

The argument laid out in this piece is subtitled “Who’s poised to double down post-McCutcheon.” None of the donors they cite who was involved in the 1993 FEC enforcement case spent twice the aggregate limit, nor is there any evidence that the donors that they single out now as “most likely to exceed” have any incentive or intention to “double down.”  If the past is any guide, some of these or other large contributors may contribute a few thousand dollars more here or there, but the risk of vast  additional spending if the aggregate spending limit is removed seems speculative, at best.

The persistently excitable portrayal of high stakes in the McCutcheon decision may be accounted for in part by a disinclination to mention or rely on the true source of concern. The issue here is not the corruption that will be unleashed by the elimination of the aggregate limit and waves of new spending. It is more the further fraying of the Buckley jurisprudence as a result of the way the court decides the case. Many of those who worry about McCutcheon are most anxious about what this case might mean for the cases that come afterwards.