The Unwilling Donor
Jurisdiction | United States,Federal |
Citation | Vol. 90 No. 4 |
Publication year | 2021 |
There is growing evidence that the story we have been telling ourselves about political money is, at best, incomplete, and that many donors give only reluctantly, out of fear of political repercussions. This Article examines the problem of the unwilling donor and argues for the first time that it has significant implications for campaign finance doctrine. Flipping the narrative allows a fresh view of key concepts, including the need for systemic campaign finance regulations, the Court's current emphasis on quid pro quo corruption, and the First Amendment interests of campaign donors. Previous scholarship has overlooked the existence and constitutional import of this alternative, "extortionate," framework.
INTRODUCTION .............................................................................. 1784
I. CAMPAIGN CONTRIBUTIONS AND THE COURTS ............ 1791
A. FECA and
B. From
C.
II. LOOKING FOR THE UNWILLING DONOR ........................... 1807
A. Two Stories About Campaign Finance .............................. 1808
B. Signs of the Unwilling Donor ............................................ 1812
C. Historical Context .............................................................. 1819
III. DOCTRINAL IMPLICATIONS ................................................. 1827
A. Affirming the Continued Need for Campaign Finance Restrictions ......................................................................... 1828
B. Acknowledging the Unwilling Donor in Campaign Finance Doctrine ................................................................ 1837
C. Revisiting
CONCLUSION .................................................................................. 1850
INTRODUCTION
Big political donors-so-called "fat cats,"(fn2) "deep pockets,"(fn3) or "whales"(fn4)-hardly cut sympathetic figures. Even before
Individual donors are far more restricted if they want to make "hard money" contributions, however. "Hard" dollars are the only funds that a federal candidate can legally solicit and the only funds that can flow directly into campaign committees, political parties, and traditional political action committees (PACs).(fn8) Until April 2014, a large donor who wished to give directly to his favorite candidate or political party was constrained by two limits.(fn9) The first was a "base limit" that capped the amount that an individual could give to any individual candidate, national party committee, state party committee, or PAC.(fn10) For example, in the 2013-2014 election cycle, a donor could write a check (or a series of checks) to then-House Speaker John Boehner for no more than a total of $5200, and to the Republican National Committee for no more than a total of $64,800.(fn11) The second limit was the "aggregate limit," which capped the total amount a donor could directly contribute to all recipients per two-year cycle.(fn12) For 2013-2014, a donor "maxed out" once he gave an aggregate of $48,600 to candidates and $74,600 to parties and other political committees, for a grand total of $123,200.(fn13) In early 2014, a donor from Georgia, a state that holds fourteen seats in the House of Representatives, would have faced a choice if he wished to contribute to his state's Democratic slate of congressional candidates: pick nine candidates to support with the maximum $5200 contribution, or give just $3471 to each of the fourteen candidates.
That changed in April 2014, when the Supreme Court struck down the aggregate limits in
This Article argues that this narrative is, at best, incomplete, and that this deficiency has significant and underappreciated doctrinal consequences. Evidence of this oversight comes in part from donors themselves. Although on its face the
From the reactions, it seems that
Ignored in these discussions are the First Amendment interests of the donor who does not want to give, or does not want to give at the requested levels, but feels he has no choice. This is not the donor who gives willingly but with a possibly mixed motive (i.e., support and access), but one who would choose not to become involved in political discussions at all, or to the amount asked, yet believes a candidate's potential to harm his business or financial interests is such that he cannot risk turning down a direct request for support. I call him the unwilling donor.(fn25) There is abundant evidence such donors exist, and they are becoming more vocal. A former president of Shell Oil USA recently called his prior campaign contributions extortion payments on national television.(fn26)...
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