Campaign Contribution Limits:
Selected Questions About McCutcheon and
Policy Issues for Congress
R. Sam Garrett
Specialist in American National Government
December 12, 2013
Congressional Research Service
7-5700
www.crs.gov
R43334
Campaign Contribution Limits: McCutcheon and Policy Issues for Congress
Summary
Aggregate limits on federal campaign contributions are intended to reduce the risk of real or
perceived corruption. The aggregate limits cap the total amount that one can give to all
candidates, parties, or political action committees (PACs). For the 2014 election cycle, the
aggregate limit for individual contributions is $123,200.
The Supreme Court of the United States is currently considering a challenge to the aggregate
contribution limits. Alabama contributor Shaun McCutcheon and the Republican National
Committee (RNC) brought the case, McCutcheon v. FEC, after the aggregate limits prevented
McCutcheon from contributing as desired to federal candidates and parties during the 2012
election cycle. On October 8, 2013, the Court heard oral argument in the case. A decision is
expected during the Court’s current term. Regardless of the outcome, the case provides an
opportunity to consider arguments surrounding the aggregate limits and to examine issues that
might be relevant for Congress if the limits are altered.
This report offers a preliminary analysis of major policy issues and potential implications that
appear to be most relevant as the House and Senate prepare for the ruling and decide whether or
how to respond. If the outcome in McCutcheon changes the status quo, debate is likely about
whether existing provisions prevent the real or perceived corruption that some believe
accompanies large contributions (or, in this case, a larger number of limited contributions). If the
current aggregate limits were relaxed or eliminated, additional funds might flow to candidate
committees, party committees, or PACs. Joint fundraising committees and leadership PACs might
expand as tools to funnel large contributions to multiple candidate committees, parties, or PACs.
Disclosure of contributors who exceed the current aggregate limits might also be a policy
concern. It is important to note that whether these possibilities will occur is unclear at this time.
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Campaign Contribution Limits: McCutcheon and Policy Issues for Congress
Contents
Scope of the Report ......................................................................................................................... 1
What are the major public policy issues surrounding the McCutcheon case? ................................. 1
What are the existing contribution limits? Which ones might be affected by McCutcheon? .......... 2
Why are the existing limits in place? ............................................................................................... 3
Which policy issues might Congress consider? ............................................................................... 4
Individual Campaigns and Individual Donors ........................................................................... 5
Fundraising and Relationships Among Non-Candidate Committees ........................................ 6
Joint Fundraising Committees ............................................................................................. 6
Contributions to Parties ....................................................................................................... 7
PACs and Leadership PACs ................................................................................................ 7
General Considerations ....................................................................................................... 8
Conclusion ....................................................................................................................................... 9
Tables
Table 1. Selected Federal Contribution Limits, 2013-2014 ............................................................. 3
Contacts
Author Contact Information........................................................................................................... 10
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Campaign Contribution Limits: McCutcheon and Policy Issues for Congress
Scope of the Report
This report is intended to respond to Congress’s ongoing interest in campaign finance policy amid
Supreme Court consideration of McCutcheon. The report relies on a question-and-answer format
designed to highlight key information in a brief and accessible way. Because the outcome of the
case remains to be determined, this report offers a preliminary analysis of major policy issues and
potential implications that appear to be most relevant as the House and Senate prepare for the
ruling and consider whether or how to respond. Importantly, the content of that ruling—including
the possibility that the status quo will be maintained—remains unknown at this time. Similarly,
the report discusses possible implications of the case for campaign fundraising or disclosure to
illustrate policy issues that might be relevant for congressional consideration. This report does not
provide a legal analysis of the case or of legal issues that might affect the policy matters
discussed here. Other CRS products provide additional information about various policy and legal
issues.1
The parties in McCutcheon and those filing amicus briefs make numerous arguments for and
against the existing contribution limits. This report does not attempt to address all those
arguments. It also does not address various arguments surrounding legal matters in the case, such
as which level of constitutional scrutiny courts should apply or whether courts should defer to
Congress to establish contribution limits.
This report will be updated to reflect major developments and as policy implications become
clearer.
What are the major public policy issues surrounding
the McCutcheon case?
McCutcheon v. FEC involves a challenge to the aggregate amount (discussed below) that an
individual can contribute to federal candidates, political parties, and political action committees
(PACs). During the 2012 election cycle, Alabama donor Shaun McCutcheon wished to contribute
more than the existing aggregate limits to candidates and the Republican National Committee
(RNC). Prohibited from making and receiving the contributions, McCutcheon and the RNC filed
suit against the Federal Election Commission (FEC), which enforces the Federal Election
Campaign Act (FECA) contribution limits.2 In September 2012, a three-judge panel of the U.S.
District Court for the District of Columbia upheld the aggregate limits. Through a review process
specified in the Bipartisan Campaign Reform Act (BCRA), the case was then appealed to the
1 On campaign finance policy generally, see CRS Report R41542, The State of Campaign Finance Policy: Recent
Developments and Issues for Congress, by R. Sam Garrett. On campaign finance law generally, see CRS Report
RL30669, The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny,
by L. Paige Whitaker. For additional discussion of legal issues surrounding McCutcheon, see CRS Report WSLG546,
Supreme Court To Hear Constitutional Challenge To Aggregate Contribution Limits, by L. Paige Whitaker; and CRS
Report WSLG363, The Supreme Court, Citizens United, and Further Challenges to Campaign Finance Law:
Aggregate Contribution Limits, by L. Paige Whitaker.
2 FECA is 2 U.S.C. §431 et seq.
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Supreme Court.3 On October 8, 2013, the Court heard oral argument. A decision is expected
during the Court’s current term.
What are the existing contribution limits? Which
ones might be affected by McCutcheon?
FECA, as amended, specifies two different kinds of contribution limits. The first are individual
limits. These limits, sometimes also called base limits, place a ceiling on the amount that an
individual, party, or PAC can contribute to a single candidate, party, or PAC during a single
election. Second, FECA limits the aggregate amount an individual can contribute to all
candidates, parties, or PACs. The aggregate limit on individual contributions appears to be most
relevant for McCutcheon.
Table 1 below summarizes the relevant individual and aggregate limits for 2013-2014.4 As the
table shows, individuals can contribute up to
• $2,600 per candidate, per election (for a total of $5,200 for both the primary and
general elections, or the complete 2014 election cycle);5
• $5,000 annually to PACs; and
• $32,400 annually to national parties.
The aggregate limits set overall caps on the amount an individual can contribute. For 2013-2014,
individual contributions can total no more than $123,200. Of that amount, $48,600 can go to
candidates, with the remaining $74,600 to parties and PACs. The PAC limits do not apply to super
PACs or other political committees (i.e., Carey committees) that can accept unlimited
contributions for use in independent expenditures.6
3 For additional discussion, see CRS Report WSLG546, Supreme Court To Hear Constitutional Challenge To
Aggregate Contribution Limits, by L. Paige Whitaker. BCRA is P.L. 107-155; 116 Stat. 81. BCRA amended FECA.
4 Because McCutcheon concerns contributions made during the 2012 election cycle, limits subject to inflation
adjustments for that cycle were slightly less than those noted in the table. For example, the individual contribution limit
for contributions per candidate, per election, was $2,500 rather than $2,600.
5 If a runoff election were held, individuals could contribute an additional $2,600.
6 Independent expenditures (IEs) are disbursements used to call for election or defeat of federal candidates. On the
definition of independent expenditures, see 2 U.S.C. §431(17). For additional discussion of super PACs, see CRS
Report R42042, Super PACs in Federal Elections: Overview and Issues for Congress, by R. Sam Garrett.
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Table 1. Selected Federal Contribution Limits, 2013-2014
Limits marked with an asterisk (*) are adjusted biennially for inflation.
Recipient
Multicandidate
Committee (most
PACs, including
Principal
leadership PACs,
National Party
State, District,
Contribution Type
Campaign
but not super
Committee
Local Party
or Limit Type
Committee
PACs)
(DSCC; NRCC, etc.)
Committee
Individual
$2,600 per
$5,000 per year
$32,400 per year*
$10,000 per year
Contributions
election*
(combined limit)
Aggregate Limit on
$48,600 to all
$74,600 to all PACs
$74,600 to all PACs
$48,600* of the
Individual
candidates*
and parties*
and parties*
$74,600* limit
Contributions
(see left) may go
to state/local
parties and PACs.
Overall Biennial Limit
on Individual
$123,200*
Contributions
Source: CRS adaptation from FEC, “Contribution Limits for 2013-2014,” http://www.fec.gov/info/
contriblimitschart1314.pdf.
Notes: The table assumes that leadership PACs would qualify for multicandidate status. The original source,
noted above, includes additional information and addresses non-multicandidate PACs (which are relatively rare).
Multicandidate committees are those that have been registered with the FEC (or, for Senate committees, the
Secretary of the Senate) for at least six months; have received federal contributions from more than 50 people;
and (except for state parties) have made contributions to at least five federal candidates. See 11 C.F.R.
§100.5(e)(3). In practice, most PACs attain this status automatical y over time. Contributions to super PACs are
unlimited, as are those to PACs employing the Carey exemption for independent expenditures. For additional
discussion, see CRS Report R42042, Super PACs in Federal Elections: Overview and Issues for Congress, by R. Sam
Garrett.
Why are the existing limits in place?
Contribution limits have been a hallmark of campaign finance policy and law for decades.
Congress established most of the current contribution limits in the 1970s when it enacted and
amended FECA.7 Most recently, Congress updated all but the PAC contribution limits with the
2002 enactment of BCRA. BCRA also adjusted most contribution limits for inflation and
reaffirmed congressional support for an overall aggregate limit.8
The existing limits are generally justified as a way to avoid real or perceived quid pro quo
corruption (e.g., “vote-buying”). Essentially, Congress established the existing individual limits at
a threshold at which it believed struck a balance between permitting donors to support their
7 Previous limits originated in the early 1900s, although at the time FECA was enacted, the existing campaign finance
regulatory structure was generally considered to be ineffective. For additional historical discussion, see, for example,
Robert E. Mutch, Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law (New York:
Praeger, 1988); and Raymond J. La Raja, Small Change: Money, Political Parties, and Campaign Finance Reform
(Ann Arbor, MI: University of Michigan Press, 2008).
8 See §307, P.L. 107-155; 116 Stat. 102-103.
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favored candidates while also limiting potential corruption. Support for the aggregate limits
generally rests with a concept known as the “anti-circumvention rationale,” which holds that an
overall limit is necessary to protect the individual limits. Supporters generally argue that if a
contributor were permitted to make an unlimited number of contributions, it would make little
difference that each individual contribution were capped. Such donors might still enjoy outsized
influence in elections and policymaking, therefore potentially corrupting both.9
Opponents of the aggregate limits contend that the limits cap the amount of political speech or
association a contributor can exercise. As CRS has noted elsewhere, appellants (McCutcheon and
the RNC) in the case argue that unlike base limits, the aggregate contribution limits act as a
spending limit by unconstitutionally restricting the number of candidates, parties, and PACs that
an individual can support.10 More specifically, some contend that the aggregate contribution
limits set an arbitrary threshold, beyond which additional contributions allegedly become corrupt.
Opponents also generally argue that aggregate contributions, and contributions to parties and
PACs generally, carry a lower risk of corruption than contributions to individual candidates.11
Opponents of the existing limits also suggest that provisions in FECA, FEC regulations, or both
already sufficiently protect against circumvention of the individual contribution limits through
limits on coordination, coordinated party expenditures, and earmarking.12 Finally, some contend
that limits on contributions to parties force donors to contribute to arguably less-accountable
“outside” groups—which are not subject to limits—such as super PACs or 501(c) organizations.13
Which policy issues might Congress consider?
It is unclear precisely how the campaign environment, and the need for related legislation or
oversight, might be affected by the McCutcheon decision. This section briefly discusses some of
the more prominent implications that could arise for Congress regardless of the outcome, and
particularly if a major change in the status quo occurs.
Developments thus far suggest that debate will continue about whether existing provisions in law
or regulation sufficiently guard against a single contributor amassing potentially corrupting
influence or whether new law or regulation is necessary. For some, existing restrictions on
earmarking14 contributions, and the fact that party committees, joint fundraising committees, or
9 See, for example, Brief of Democratic Members of the United States House of Representatives as Amici Curiae in
Support of Appellee, http://fec.gov/law/litigation/mccutcheon_sc_house_amici_brief.pdf, p. 20-22.
10 CRS Report WSLG546, Supreme Court To Hear Constitutional Challenge To Aggregate Contribution Limits, by L.
Paige Whitaker.
11 See, for example, Brief for Appellant Shaun McCutcheon, http://fec.gov/law/litigation/
mccutcheon_sc_mcc_brief.pdf, pp. 18-23; 45-50.
12 See the “Which policy issues might Congress consider?” section of this report for additional discussion. In brief, all
three provisions are designed to limit the potential for evading contribution limits. The coordination concept largely
concerns the financial value of in-kind contributions or services, such as the polling data transmitted from a party to a
campaign. Political parties may make expenditures (coordinated party expenditures) in consultation with candidates
subject to limits. Earmark rules specify that even if candidate contributions are routed through another source, they are
attributed to the original donor. See, in particular, 11 C.F.R. §109.20; 11 C.F.R. §109.32; and 11 C.F.R. §110.6
respectively.
13 The PAC contribution limit does not apply to super PACs and “Carey committees” accepting contributions to
separate accounts maintained only for independent expenditures. For additional discussion, see CRS Report R42042,
Super PACs in Federal Elections: Overview and Issues for Congress, by R. Sam Garrett.
14 As noted previously, earmarking concerns identifying the original source of a contribution passed through another
(continued...)
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PACs are legally separate entities from candidate campaigns, limit the potential for abuse. For
others, aggregate contributions exceeding current limits could violate the spirit of the individual
limits and inherently create the potential for corrupting influence. Those favoring additional
regulation might also raise concerns about whether larger aggregate contributions could allow
candidates to circumvent the base limits by using joint fundraising committees, leadership PACs,
or both.
Individual Campaigns and Individual Donors
• If the aggregate limits were relaxed, donors could contribute amounts above the
current aggregate limits if they chose to do so. The ability of individual political
committees to attract donors who are able to “max out” (as reaching the
aggregate threshold is often described) would likely vary considerably.15
Conversely, if no change in the status quo occurred, donors would be confined to
the current limits.
• Those who wish to invest large sums in campaigns—albeit through spending
rather than contributions—are already permitted to do so by making independent
expenditures or contributing to super PACs.16 It is possible that raising or
eliminating the cap on aggregate contributions could lead to more money in
elections overall, as donors add more contributions to their existing spending. It
is also possible that donors would instead reallocate their existing independent
spending toward more contributions to candidates, parties, or PACs.
• Observers have posed a variety of hypothetical scenarios about how donors
might react if permitted to make more aggregate contributions than they may
today. To take one example, if a donor were permitted to do so and wanted to, in
the absence of aggregate limits, he or she might give $5,200 to a candidate in
every congressional race in the 2014 cycle. That amount could total
approximately $2.3 million in House races and $171,600 in Senate contests.17
The same contributor might also be able to contribute to political party
committees, PACs, or both. When assessing these and other estimates, it is
important to note that they could vary substantially from actual outcomes.
Although it is certainly possible that a donor might be able to make a
contribution in every race, donors would not necessarily choose to do so, nor
would every race be contested.
(...continued)
entity (a “conduit,” such as a political party). See chapter 6 in Federal Election Commission, Federal Election
Commission Campaign Guide: Political Party Committees, Washington, DC, August 2013, http://www.fec.gov/pdf/
partygui.pdf.
15 Although some social science research has studied why political contributors give money, there is relatively little
empirical data about why people give the amounts they do (particularly why they choose to “max out”). On existing
research, see, for example, Bertram N. Johnson, Political Giving: Making Sense of Individual Campaign Contributions
(Boulder, CO: First Forum Press, 2013); and Peter L. Francia, et al., The Financiers of Congressional Elections:
Investors, Ideologues, and Intimates (New York: Columbia University Press, 2003).
16 For additional discussion, see CRS Report R42042, Super PACs in Federal Elections: Overview and Issues for
Congress, by R. Sam Garrett.
17 This scenario assumes that a donor could give $2,600 for both the primary and general elections (totaling $5,200 for
the entire election cycle) and that there would be 435 House and 33 Senate contests (excluding delegate races and
assuming that a contributor gave to one candidate in each race).
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• Even if donors were permitted to give as much as they desired, it is unclear how
many such donors exist or what their preferences might be. A recent Center for
Responsive Politics analysis found that 646 donors gave the maximum
permissible amount of $117,000 during the 2012 election cycle.18 Exact numbers
are unknown because existing disclosure requirements do not guarantee that
donors who “max out” will be identified. Although political committees must
make their best efforts to report to the FEC the name, address, occupation, and
employer of contributors who give more than $200,19 political committees would
not necessarily know about a donor’s contributions to other political committees.
Practically speaking, this means that those who wish to determine whether a
donor has exceeded aggregate limits must either ask the donor or compare FEC
reports that itemize donor identity. Even then, typographical errors and
inconsistencies (e.g., varying use of middle initials) can make it difficult to
determine whether donors with similar names or other identifying information
are, in fact, the same person. Regardless of the outcome in McCutcheon, if
Congress wished to make identifying particular donors easier, requiring a
consistent donor identification number could be an option. Such an option could
have the advantage of making tracking individual donor activity (including
whether someone exceeded the aggregate limits) easier. However, this approach
might raise donor-privacy concerns, as well as the logistical challenge of how
and when a donor number would be issued.
Fundraising and Relationships Among Non-Candidate Committees
Joint Fundraising Committees
• During Supreme Court oral argument in McCutcheon, much of the discussion
emphasized entities known as “joint fundraising committees” (JFCs). These
political committees essentially serve as a clearinghouse for contributions. JFCs
often receive contributions that, if treated as a single contribution, would exceed
individual limits. JFCs route the contributions, in permissible amounts, to
multiple political committees (e.g., several candidate and party committees)
based on a pre-determined allocation formula. The large initial contributions are
thus treated, for compliance purposes, as multiple contributions.20 Although
sometimes controversial, JFCs are a common fundraising method among both
major parties and have existed since the late 1970s.21 During Supreme Court oral
argument, some of the discussion emphasized hypothetical scenarios in which a
single contributor might be able to give approximately $3.5 million to a party
18 Bob Biersack, McCutcheon’s Multiplying Effect: Why An Overall Limit Matters, Center for Responsive Politics, blog
posting, September 17, 2013, http://www.opensecrets.org/news/2013/09/mccutcheons-multiplying-effect-why.html.
19 2 U.S.C. §434(b)(3)(A).
20 On JFC regulations generally, see 11 C.F.R. §102.17.
21 For additional discussion, particularly concerning allocation and reporting requirements, see Appendix B in Federal
Election Commission, Federal Election Commission Campaign Guide: Political Party Committees, Washington, DC,
August 2013, http://www.fec.gov/pdf/partygui.pdf. For a contemporary example of joint fundraising, see Anthony
Corrado, “Fundraising Strategies in the 2012 Campaign,” in Campaigns and Elections American Style, ed. James A.
Thurber and Candice J. Nelson, 4th ed. (Boulder, CO: Westview, 2014), pp. 103-104. JFCs developed through a series
of FEC advisory opinions (AOs). See, for example, AOs 1977-14; 1977-20; and 1979-35.
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joint fundraising committee for disbursement to other party committees and
candidates.22 Some might also raise concerns about the composition of JFCs,
particularly if they were perceived to provide outsized influence to one candidate
or donors who helped route funds to other candidates. As noted elsewhere in this
report, these scenarios might or might not develop, and might or might not be
unique to a post-McCutcheon environment.
Contributions to Parties
• Traditional contributions to parties could also be affected. In the absence of
aggregate limits to national parties, contributions might be directed to at least
three arms of each party: the national party committee and the two legislative
campaign committees. For example, a contributor who wished to support the
“national” Democratic Party could give to the Democratic National Committee
(DNC), the Democratic Congressional Campaign Committee (DCCC), and the
Democratic Senatorial Campaign Committee (DSCC). In this scenario, one
contributor might give $97,200 rather than the current (2014) annual limit of
$32,400.23 The same is true for counterpart Republican committees. The current
federal limit on combined contributions to district, local, and state parties is
$10,000 per year. Here, too, in the absence of aggregate limits, any number of
district, state, or local parties, might be supported.
PACs and Leadership PACs
• Relaxing aggregate contribution limits could have implications for leadership
PACs. Beginning in the 1980s, sitting or prospective members of the
congressional leadership formed these committees to provide another resource,
besides their campaign committees, to make financial contributions to other
lawmakers’ campaigns. Today, leadership PACs extend to a wide range of
Members. Contributions to leadership PACs (and other PACs) share a combined
$74,600 biennial limit (for 2013-2014) with parties. Some observers have
suggested that if aggregate limits on contributions to leadership PACs were lifted,
it might cause further proliferation of these committees and raise concerns about
whether they would be seen as extensions of the Member’s campaign
committee.24 Although such an outcome might occur, it is also perhaps
noteworthy that any candidate who wishes to do so may already form a
leadership PAC. If increased (or current) leadership PAC activity were of concern
to Congress, one option could be to require that leadership PACs and the
candidates with whom they are affiliated share a contribution limit. As Table 1
shows, currently individuals may contribute $5,000 annually to leadership PACs
and up to $5,200 per candidate for the 2014 election cycle. Those who view
22 Discussion of this and similar figures appears throughout the oral-argument transcript, http://www.supremecourt.gov/
oral_arguments/argument_transcripts/12-536_7l48.pdf . See especially pp. 20-25.
23 This scenario assumes that a donor could give the $32,400 maximum for the 2014 cycle to each of the three national
party committees.
24 See, for example, Bob Biersack, McCutcheon’s Multiplying Effect: Why An Overall Limit Matters, Center for
Responsive Politics, blog posting, September 17, 2013, http://www.opensecrets.org/news/2013/09/mccutcheons-
multiplying-effect-why.html.
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leadership PACs as a method of circumventing candidate contribution limits
might favor a shared limit. On the other hand, those favoring the status quo might
object to restricting leadership PACs, noting that they cannot contribute more
than $5,000 annually to any Member’s campaign, and that separate limits are
consistent with FEC rules based on longstanding campaign practice.25
• Some have suggested that traditional PACs dedicated to contributing to a few
candidates could emerge in a post-McCutcheon era, thereby potentially
circumventing the spirit of the individual limits.26 As with the leadership PAC
example, it appears that this scenario could unfold regardless of McCutcheon, but
a ruling that permitted additional giving above the current aggregate limits might
provide new incentives for both kinds of PACs to emerge and solicit donors who
today would be unable to give as much as they might like because they had
“maxed out.”
General Considerations
• Regardless of the outcome in McCutcheon, if Congress wishes to reexamine the
ways in which contributions might flow through parties or PACs to candidates,
three sets of provisions—those concerning coordinated party expenditures,
coordination, or earmarks—could be especially relevant. These related concepts
are discussed below.
• FECA permits parties to make “coordinated party expenditures” in
consultation with their candidates.27 Often, these expenditures are for
political advertising or polling. For the 2012 cycle,28 parties could spend up
to $45,600 for House nominees in at-large states, $91,200 for House
nominees in states with multiple districts, and between $91,200 and
approximately $2.6 million for Senate candidates.29 As noted previously, the
McCutcheon appellants contended that limits on coordinated party
expenditures minimize the chances that individual contributions to parties
will improperly benefit particular candidates. If additional contributions to
parties were permitted, some might argue that coordinated party expenditure
limits also should be commensurately raised or eliminated. In fact, proposals
to do so predate McCutcheon. Some see raising or eliminating the existing
caps as a remedy for parties that face increasing financial competition from
“outside” groups, such as super PACs and 501(c) organizations. Others
25 In a 2003 rulemaking, the FEC determined that although leadership PACs are “affiliated” with candidates, candidate
committees and leadership PACs have separate contribution limits. On those rules and the agency’s rationale, see
Federal Election Commission, “Leadership PACs,” 68 Federal Register 67013, December 1, 2003.
26 See, for example, Charles Fried, “It’s Not Citizens United,” New York Times, October 2, 2013, p. A23.
27 For additional discussion, see CRS Report RS22644, Coordinated Party Expenditures in Federal Elections: An
Overview, by R. Sam Garrett and L. Paige Whitaker.
28 As of this writing, the FEC has not yet announced 2014 limits.
29 Senate amounts are determined by formula based on a state’s voting-age population (VAP). The 2012 limits are
available on the FEC website, http://www.fec.gov/info/charts_441ad_2012.shtml. Parties are also permitted to make
unlimited independent expenditures, assuming that they do not impermissibly coordinate with a campaign.
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caution that raising or eliminating coordinated party expenditure limits could
effectively return parties to the “soft money” era that predated BCRA.30
• For expenditures that fall outside the coordinated party expenditure
framework, other restrictions typically apply. Perhaps most prominently,
existing FEC regulations establish a three-part test that considers who paid
for a communication (such as a political advertisement), the conduct
surrounding production, and communication content to determine whether
impermissible coordination has occurred and, therefore, whether contribution
limits were exceeded.31 Some observers contend that these regulations—
which have been the subject of protracted litigation—are too complex, easily
avoided, or both.32 If Congress chose to do so, it might reduce some of the
ambiguity surrounding the current standard by replacing it with statutory
language specifying what constitutes coordination and the level and type of
permissible coordination. Establishing agreement on key concepts could be
controversial, as the FEC has found through its regulatory efforts and
subsequent litigation.
• Earmarking provisions in FECA and FEC regulations require attributing
candidate contributions to their original source even if they are passed
through an intermediary.33 For example, if an individual contributed to a PAC
with instructions that a portion of the contribution go to a specific candidate,
the contribution would likely be treated as “earmarked” and reported
accordingly.34 Earmarking provisions were discussed at McCutcheon oral
argument as a potential safeguard against circumventing aggregate
contribution limits. Accordingly, it is possible that these provisions could be
relevant for understanding the Court’s opinion. In general, however, because
most contributions are not made through earmarking, it is unclear at this
point how consequential these scenarios might be.
Conclusion
Whatever the outcome in McCutcheon, the debate over contribution limits is unlikely to end
when the Court issues its opinion. This report has provided a preliminary overview of policy
issues that may be relevant as that debate continues and as Congress prepares to consider the
decision. If the aggregate limits are relaxed or abolished, the most obvious implications could be
for individual campaigns, parties, or PACs that are able to receive contributions which might
today be precluded from donors who had already “maxed out.” More substantial implications
30 For additional discussion of hard money, soft money, and BCRA, see CRS Report R41542, The State of Campaign
Finance Policy: Recent Developments and Issues for Congress, by R. Sam Garrett.
31 11 C.F.R. 109.21.
32 Most notably, these include the Shays v. FEC cases.
33 2 U.S.C. §441a(a)(8); 11 C.F.R. §110.6. For independent expenditures (which candidate committees do not make),
donor identity can remain unclear. For additional discussion, see CRS Report R42042, Super PACs in Federal
Elections: Overview and Issues for Congress, by R. Sam Garrett.
34 This scenario is distinct from bundling, in which an event host, for example, collects several checks made out to the
candidate campaign and delivers them to the campaign. Bundling reporting requirements apply to lobbyists in some
circumstances. See 2 U.S.C. §434(i).
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could occur if a change in the aggregate limits permitted magnifying individual contributions
through contributions to multiple political committees, such as joint fundraising committees. It is
important to note that actual donor behavior and fundraising practices would depend heavily on
the particulars of the McCutcheon decision, individual preferences, and strategic decisions.
Author Contact Information
R. Sam Garrett
Specialist in American National Government
rgarrett@crs.loc.gov, 7-6443
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