The Independent View: McCutcheon Lawyer Brings New Campaign Finance Cases

This is an update from a prior post from an article in POLITICO by Byron Tau.

The attorney who brought the successful campaign finance challenge McCutcheon v. Federal Election Commission is back with a new case concerning the rules governing political action committees. Dan Backer of the firm DB Capitol Strategies has filed suit on behalf of several plaintiffs, arguing that the laws regarding political action committee donation limits are arbitrary, indefensible and an unconstitutional violation of the equal protection clause.

"These discriminatory restrictions impermissibly allow entrenched institutions and interests to engage in protected First Amendment activities to a greater extent than newly formed grassroots organizations that have spontaneously mobilized in response to emergent political issues and developments," alleges the lawsuit, filed in the United States District Court for the Eastern District of Virginia.

At issue are campaign finance laws dating to the 1970s that set different donation limits based on the age of a political action committee. PACs that are less than 6 months old are permitted to give up to $5,200 to a candidate in an election cycle, while PACs more than 6 months old can give $10,000 per election cycle.

By contrast, new PACs can give $10,000 to a state political party committee and $32,400 to a national political party per year. Those limits actually decrease once a PAC reaches 6 months old to $5,000 each year to a state or local party and $15,000 annually to a national party.

“The right of groups and individuals to speak are being treated very differently,” Backer said in an interview.

The challenge was filed on behalf of a tea party political action committee, a local Virginia political party and a Republican congressional candidate running in Nevada.

Many of those rules were initially established by Congress to prevent someone from forming a network of brand-new PACs to circumvent contribution restrictions on individuals and PACs. But Backer says the campaign finance landscape has changed and evolved significantly since Congress set those limits more than 40 years ago.

Since then, the Supreme Court has affirmed the right of donors, corporations and unions to spend unlimited amounts of cash independent of campaigns. The court also recently struck down the aggregate contribution limit in McCutcheon, a case that Backer first brought.

Backer also said he’s planning on bringing a future challenge to other federal campaign finance laws. Specifically, Backer said he’d like to challenge the law that indexed individual contribution limits to inflation, but not PAC donations. Individual donation limits increase every cycle based on inflation and are currently set by the FEC at $5,200 per cycle. PAC donations to candidates, on the other hand, have been set at $10,000 per election since the 1970s. Inflation has steadily eaten away at the real dollar value of that limit.

“I’m going to be bringing that case almost certainly sometime this year,” Backer said. The fact that PAC contributions remain un-indexed to inflation is “completely insane,” he said.