Neil Reiff and former Federal Election Commission Chairman Don McGahn argue in Campaigns and Elections that action should be taken to fix the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold.
On state parties, Reiff and McGahn argue:
McCain-Feingold created a new concept called “federal election activity,” which includes the traditional party programs to register voters, develop voter lists, provide sample ballots and get voters to the polls on Election Day. The law piled on several restrictive provisions that apply even if those activities also benefitted state and local candidates, and even if not undertaken to assist federal candidates. In addition, McCain-Feingold placed a very complex set of regulations upon state and local committees, which make the law regulating state parties look like a Rube Goldberg contraption.
. . .As spending from candidates, national party committees and outside groups is skyrocketing, state party spending has stayed relatively fat. This may be an indication that state and local party committees are becoming marginalized in the current campaign finance scheme. This is unfortunate.
The two-party system has been a stabilizing force in our democracy for over 200 years. Without that stabilizing force, however, there has been a significant rise in the number of single-issue candidates, nasty primaries pitting the middle against the hard partisan flank, and a general polarization. It is time for Congress to reconsider whether some of the regulations placed upon state party committees should be revisited, especially in light of the rise of Super PACs and other outside spending.
Sandler Reiff Young & Lamb has been one of the go-to sources over the past few days as journalists have reported and analyzed the Supreme Court’s decision in McCutcheon v.FEC. Below are just some of the stories where attorneys at SRYL have provided their expertise:
David Mitrani told the Center for Public Integrity that since the Supreme Court ruled that aggregate contribution limits are unconsititutional, it is unlikely that similar aggregate limits in twelve states and the District of Columbia will continue to stand.
David Mitrani also helped MotherJones break down the aforementioned aggregate limits at the state level.
Neil Reiff told Campaigns and Elections that party committees are one of the big winners in the aftermath of McCutcheon: “If an individual wants to triple max each year to the three national committees, that is $194,400 for the two-year cycle, way more than the aggregate limit.”
Neil Reiff reminded Bloomberg that while someone could theoretically create a “Super-Joint Fundraising Committee,” in order to write one check that is distributed among dozens of candidates, they could likely still get more bang for their buck by contributing to a Super PAC.
Late yesterday, David Mitrani told Reuters that campaign officials in Maryland and Massachusetts had already stopped enforcing aggregate contribution limits, a little more than 24-hours after the McCutcheon decision was handed down.
Finally, Neil Reiff told the Wall Street Journal that while Democratic lawmakers generally prefer more restrictions on money in elections, party strategists will welcome the loss of federal aggregate contribution limits.
Neil Reiff was quoted in a story today in the Wall Street Journalabout the effects that the Supreme Court’s ruling in McCutcheon v. FEC might have on future court challenges to campaign finance laws. While the Court left in place limits on contributions to individual candidates and committees, the Court did not offer a robust endorsement of said limits.
Mr. Reiff pointed out that further loosening of campaign finance restrictions could create a catch-22 for Democrats. On one hand, fewer restrictions would allow Democrats to raise more money. On the other hand, Democrats generally favor tighter restrictions on money in elections.
Mr. Reiff told the Journal “There is always that tension.”
The Election Law Society at the College of William and Mary Law School awarded Liz Howard (J.D. ’09) with the ELS Alumnus of the Year Award. In addition to her regular outstanding practice advising candidates, committees, non-profits, and lobbyists on election law matters, Ms. Howard was also recognized for her tireless work last November serving on the recount team for the Mark Herring for Attorney General [of Virginia]. She was also recognized for her work as lead counsel of the victorious recount team for Lynwood Lewis, whose state Senate special election decided control of the Virginia State Senate.
Ms. Howard was honored on March 21st at the second annual D.C. Friends of ELS Reception.
David Mitrani told Reuters today that the effects of the Supreme Court’s decision in McCutcheon v. FEC are already being felt at the state level, even a few days after the ruling. At issue in the case was aggregate contribution limits, which limited the total amount of money that individuals could give to all federal candidates ($48,600) and political committees ($74,600) per election cycle. While the Supreme Court left base limits intact, they struck down the aggregate limits on First Amendment grounds.
However, in addition to the federal government, twelve states plus the District of Columbia had similar aggregate contribution limits. Mr. Mitrani that campaign finance officials in Maryland and Massachusetts had already begun changing state regulations:
In Maryland, which has limited donations to party committees in state elections to $10,000 every four-year election cycle, state regulators already have told election lawyers that they will stop enforcing the limit, said David Mitrani, a lawyer who specializes in campaign finances cases.
Massachusetts officials also said they would stop enforcing the state’s limit on candidate donations, but are reviewing a limit on contributions to political parties.
Other states with such limits almost certainly will face lawsuits challenging the limits, Mitrani said.
Joseph Sandler defended MoveOn.org in a court appearance before a US District Judge in Baton Rouge, Lousiana yesterday. At issue was a billboard that MoveOn.org critical of Lousiana Governor Bobby Jindal’s rejection of Medicaid expansion. MoveOn.org parodied the state’s tourism slogan “Pick Your Passion” in the billboard, which then said “But hope you don’t love your health. Gov Jindal’s denying Medicaid to 242,000 people.”
In response, Louisiana sued MoveOn.org claiming trademark infringement. However, Mr. Sandler defended MoveOn.org, claiming that the billboard was clearly a parody, which is protected speech. He told the (Baton Rouge) Advocatethat the billboard “an appropriate and constitutional use of parody. The idea of the billboard is here the state promotes itself as a great place to live and visit yet we … want to make a point that it’s not such a good place to live and visit because of health care policy decisions of the governor. … This is a noncommercial use of the mark.”
Neil Reiff was quoted today in a story in Bloombergon the effect that the Supreme Court’s decision in McCutcheon v. FEC will have on campaign fundraising in the coming months and years. With aggregate contribution limit declared unconstitutional, it is possible that super-Joint Fundraising Committees could come into existence that support dozens of candidates. With a super-JFC, an individual could write one massive check that would then be distributed among many candidates.
However, Mr. Reiff tampered expectations of such a rise:
Whether the McCutcheon ruling will lead to “a groundswell of money in the system, I don’t know,” Neil Reiff, a Democratic campaign-finance lawyer with Sandler, Reiff, Young & Lamb, said in an interview. Writing a big check to a super-JFC is “still not as efficient as writing a check to a super-PAC, so I can’t necessarily compare this to the revolution of super-PACs in Citizens United. But obviously it’s something,” Reiff said.
David Mitrani was quoted today in a story in Mother Jones about the far-reaching impact of McCutcheon v. FEC. He told the magazine that although the case dealt only with federal aggregate contributions, it will ultimately apply at the state and local level as well.
“The McCutcheon opinion is right from the Supreme Court and what the Supreme Court said is state aggregate limits on top of the federal limit are unconstitutional today, unconstitutional yesterday, unconstitutional 20 years ago,” said Mr. Mitrani. And in the case of states with low aggregate contribution limits, Mr. Mitrani added that “There are going to be pretty big changes in how money flows into those states.”
The article further detailed the aggregate limits that exist in the twelve states (plus the District of Columbia) who have such limits.
David Mitrani told WAMU that in the wake of yesterday’s Supreme Court decision in McCutcheon v. FEC, it is unlikely that similar limits at the state level will stand.
“[The ruling] certainly calls into question the laws, and it’s unlikely that given [Chief Justice John] Roberts’ opinion these laws would survive,” said Mr. Mitrani. ‘It’s unlikely that these aggregate limits by themselves will survive.”
In addition to the FEC, twelve states and the District of Columbia have similar aggregate contribution limits that capped how much donors could give to candidates such as gubernatorial candidates, state legislators, and judges at the state level.
Yesterday’s decision by the Court nullified the federal aggregate limit that individuals could give to all candidates and committees. Previously, donors could only give $48,600 to all federal candidates, and $74,600 to all PACs and party committees. With these limits nullified, donors are only restricted by base limits: $2,600 per election per federal candidate, $32,400 per year per national party committee, $5,000 per year per PAC, and $10,000 per year to the federal accounts of state and local party committees.
Neil Reiff was quoted in Campaigns & Elections magazine’s write-up on today’s McCutcheon v.FEC Supreme Court decision, striking down federal aggregate contribution limits. He told Campaigns & Elections that the “real winners will be national party committees. It’s been the national committees who are able to find and cultivate these larger donors. If an individual wants to triple max each year to the three national committees, that is $194,400 for the two-year cycle, way more than the aggregate limit.”
Under the old rules, an individual could only donate an aggregate of $74,600 per 2-year election cycle to all PAC and party committees, with a maximum contribution limit of $32,400 to any individual party committee. In addition, an individual could only donate an aggregate of $48,600 per cycle to all federal candidates, with a maximum contribution limit of $2,600 per candidate per election. Today’s decision strikes down the aggregate limits while preserving the contribution limits to individual candidates, PACs, and party committees.