Sunlight Foundation Reporting Group

Crusading lawyer takes aim at contribution limits

The attorney who has been pushing the FEC to ease a host of campaign finance rules is at it again.

Dan Backer's latest target: the ceiling on how much money a person can give candidates for federal office in one election cycle, which currently stands at $46,200. In an advisory opinion request to the Federal Election Commission posted today, Backer, of DB Capitol Strategies, and two other attorneys argue the limit "has the effect of punishing the wealthy contributor" and is unconstitutional for many reasons, not the least of which is the Supreme Court's game-changing Citzens United decision in 2010.   

"The Supreme Court has been clear: campaign finance laws are constitutional when they prevent the corruption of candidates, and unconstitutional when they constrain some speakers to equalize others," DB Capitol Strategies attorney Steve Hoersting wrote in an email to Sunlight. "An aggregate limit ... constrains speakers without preventing either any additional corruption of candidates." 

Backer, who already forced the FEC to ease limits on creating super PACs after taking the agency to court last year, says he's not interested in lifting the limits on how much individuals can to each candidate -- $2,500 per election, or $5,000 during the course of a two year cycle. But he and his associates say the $46,200 overall cap is preventing their client, Alabama mining company executive Shaun McCutcheon, from fulfilling his wish to contribute upwards of $50,000 to more than two dozen GOP candidates, all of them challengers except for Reps. Michele Bachmann, R-Minn., and Martha Roby, R-Ala. In an affidavit that accompanied the FEC petition, McCutcheon said he wants to contribute at least $51,900 this cycle and $60,000 next cycle. Backer and his associates argue that the FEC is infringing on McCutcheon's free speech rights "to speak and to associate with every candidate of his choosing."

In their request to the FEC, the lawyers write that McCutcheon "wants to express his affection for the Declaration of Independence by making additional contributions to candidates, predominately challengers, interested in advancing the cause of liberty."

The lawyers are urging the FEC not to wait for Congress to lift the ceiling because, they argue, it would go against the lawmakers' self-interest. They cite Justice Clarence Thomas's opinion in the Randall decision. "Contribution limits always disproportionately burden challengers, who often have smaller bases of support than incumbents," Thomas wrote.

Backer and company are waiting for another day to challenge the FEC's $70,800 limit on individuals' donations to PACs and political parties. The Supreme Court believes "party committees and other PACs to be vehicles of circumvention or conduits of corruption," Hoersting wrote in an email, but the aggregate limit to candidates may fit largely with the Court's decision in Buckley v. Valeo. 

The effort to lift limits on individual contributions is just the latest of many assaults on campaign finance laws by Backer. DB Capitol Strategies recently asked for an advisory opinion from the FEC that would have allowed unions and corporations to establish hybrid PACs (a super PAC within a traditional PAC). The FEC deadlocked. But last summer, after losing a case in D.C. court, the FEC handed Backer a significant victory, giving the green light for other types of PACs -- independent of corporations, unions, and organizations -- to establish separate super PAC accounts, thereby enabling them to collect and spend money in unlimited amounts with one hand, while giving directly to candidates with the other.