The Unwilling Donor

• Jurisdiction: United States,Federal
• Citation: Vol. 90 No. 4
• Publication year: 2021

THE UNWILLING DONOR

Jennifer Mueller(fn*)

Abstract: For nearly forty years, the Supreme Court has evaluated campaign finance restrictions by weighing the First Amendment burden they place on a donor eager to engage the political process against the government's interest in avoiding corruption of that process. Most recently, in McCutcheon v. FEC, the Court struck down aggregate contribution limits, allowing donors to give-and candidates and parties to solicit-millions of dollars directly to candidates, parties, and political action committees. Yet what should have been a significant victory for big donors was greeted with dismay by many of the same.

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.

The Unwilling Donor steps into this critical gap. The Article first provides an overview of the Supreme Court's past campaign finance jurisprudence, including McCutcheon, almost all of which is premised on the notion of a willing donor. It then surveys empirical studies and historical data to demonstrate that the unwilling donor, while perhaps not a sympathetic character, is a very real one. The final Part of the Article contemplates the legal significance of the unwilling donor problem, concluding that it is relevant to the continued vitality of campaign finance efforts, to the Court's analysis of campaign finance reform restrictions, and to future litigation strategies in this area.

INTRODUCTION .............................................................................. 1784

I. CAMPAIGN CONTRIBUTIONS AND THE COURTS ............ 1791

A. FECA and Buckley ............................................................. 1793

B. From Buckley to McCutcheon ............................................ 1798

C. McCutcheon v. Federal Election Commission ................... 1801

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 McCutcheon Through the Frame of the Unwilling Donor ................................................................ 1845

CONCLUSION .................................................................................. 1850

INTRODUCTION

"The sweetest words in the English language are: 'I'm maxed out.'" (fn1)

Big political donors-so-called "fat cats,"(fn2) "deep pockets,"(fn3) or "whales"(fn4)-hardly cut sympathetic figures. Even before Citizens United v. FEC(fn5) changed the rules for corporate and union political spending, rich donors had free rein to spend as much money as they wished to influence federal elections so long as their expenditures were neither requested by nor coordinated with an elected official, political party member, or candidate.(fn6) Some have seized that opportunity, particularly in recent years.(fn7)

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 McCutcheon v. FEC.(fn14) Individual donors can now contribute up to the base limit to every candidate, national and state committee, and PAC. The day after McCutcheon, if our hypothetical donor wished to "max out" to each candidate and party committee, he could have directly contributed more than $3.6 million per election cycle per party-a figure that excludes contributions to PACs, which number in the thousands.(fn15) According to a plurality of Justices on the Supreme Court, abolishing aggregate limits advances wealthy donors' First Amendment rights, allowing them to fully "participat[e] in an electoral debate that we have recognized is 'integral to the operation of the system of government established by our Constitution.'"(fn16) This line of reasoning follows a narrative that has informed every campaign finance case since Buckley v. Valeo(fn17) in 1976, a narrative in which wealthy special interests clamor to influence the political process. The task then for courts is to weigh these donors' First Amendment interests in speech and association against the risk that their participation might corrupt, or appear to corrupt, candidates and elected officials.(fn18)

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 McCutcheon ruling marked a great victory for the aforementioned "fat cats," it was greeted with dismay by many in the business and lobbying communities-the very wealthy donors whose rights a plurality of the Court vigorously defended. "I'm horrified, planning to de-list my phone number and destroy my email address," said one donor who had previously given at the aggregate limits.(fn19) "I'm poor again as a result," announced a top lobbyist who had also maxed out in previous election cycles.(fn20) "We believe that the decision is based on wishful thinking," wrote the American Sustainable Business Council on behalf of its more than 200,000 members.(fn21)

From the reactions, it seems that McCutcheon may have been the least business-friendly Supreme Court decision of the term.(fn22) It also may have been one of the most troubling First Amendment decisions, although not for the reasons-or not only for the reasons-that commentators have already noted. The opinion has been critiqued for narrowing the grounds on which Congress can enact campaign finance contribution restrictions to the risk of actual or apparent "quid pro quo" corruption.(fn23) Relatedly, some have suggested that because quid pro quo transactions between contributors and candidates are already prohibited by a web of federal and state criminal laws, the Court's holding presages a not-so-distant day when the entirety of the federal campaign finance framework will be found redundant and not sufficiently compelling to justify the First Amendment burden it places on campaign contributors.(fn24)

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)...