Yes, Mr. Bauer, the McCutcheon case is a big deal

A photo of a laughing Bob Bauer.
Bob Bauer. Photo credit: Wikimedia Commons.

Bob Bauer, the lawyer who represents President Barack Obama’s dark money slush fund, can’t understand why the Center for Responsive Politics and Sunlight made such a fuss in our joint report, “Most likely to exceed: Who’s poised to double down post-McCutcheon.” Written as the Supreme Court considers a challenge to a longstanding federal election law which limits how much an individual can give to candidates, parties and political action committees in any election cycle (currently set at $123,200), the report looks at 20 donors who have already contributed $100,000 or more.

No one can doubt Bauer’s familiarity with what effective ways of exploiting campaign finance laws. He helped perfect the use of the soft money loophole while working for Rep. Tony Coelho, the disgraced California congressman memorably profiled in Brooks Jackson’s book Honest Graft. More recently, he was general counsel for President Barack Obama’s 2012 campaign and represents its successor, Organizing for Action, a 501(c)4 social welfare organization that is campaigning to support the White House’s agenda.

Bauer argues that striking down the $123,200 limit — the goal of Shaun McCutcheon, an Alabama businessman who is the plaintiff in the case — would not make much of a difference. Individuals can already bundle for campaigns, raising from others much more than the aggregate limit that they themselves can contribute. They can give millions to super PACs. And because in the past, donors haven’t exceeded limits by very much, there’s no reason to think donors would give more were they able to. So it won’t matter much at all if the Supreme Court rules in favor of McCutcheon.

Here’s why he’s wrong.

First, consider how political action committees, which face no aggregate limits, influence Congress. In 2013, to take one example, Northrop Grumman’s PAC contributed to 298 sitting members of Congress. In 2014, Congress included language in its omnibus spending bill preserving a program near and dear to the company’s heart, one that the Air Force has been trying to kill for two years. Northrop Grumman had the option, after Citizens United, to skip PAC contributions to members and instead run independent expenditures to influence voters to influence those members. Given what ads cost, though, the company would have spent a whole lot more than the $1.67 million its PAC doled out — an average of a little more than $5,600 per member.

Not every dollar of political spending has the same effect, and giving directly to a member of Congress is more likely to have influence, at a much lower price, than buying ads that may or may not persuade voters to support or oppose that candidate.

And, of course, long before Citizens United opened the door to big corporate spending on outside ads, an individuals could spend unlimited amounts of his or her own money on independent expenditures to support or oppose a federal candidate. Yet big donors, including Harold Simmons, Donald Trump and Ronald Perelman, all preferred to write checks — too many checks — to politicians. All three were among those the FEC fined back in 1993 for excessive contributions.

It is true that there is no way anyone can predict the future with 100 percent accuracy. But, as Paul Blumenthal reported in the Huffington Post, in 2012, when the aggregate limit was $117,000, some 49 donors gave more than $150,000. Eight of them gave more than $200,000, with three giving more than twice the limit. How much more these individuals would give should the Court eliminate the limits is a matter of conjecture. But with rapacious politicians desperately begging for ever larger sums of money (his client Obama for America excelled at it in 2012), it is not unthinkable that donors would be under tremendous pressure to “do more for their party.”

And of course, politicians would be under more pressure to do something in return for them. In a world where well-heeled donors can bundle contributions and give millions to super PACs, shouldn’t we be concerned about them having even more of the influence and access that contributing money buys?