The Federal Election Commission’s anti-earmarking restrictions provided much of the rhetorical defense for Chief Justice Roberts’ opinion in McCutcheon v. FECLike this blog did in October, the Chief Justice argued that donors could not evade the contribution limits as easily as Justice Breyer said in oral argument.  But the Chief Justice went very far in the opposite direction.  Taking the hypothetical case of Representative Smith, the Chief Justice said that

the donor may not contribute to the most obvious PACs: those that support only Smith … He cannot retain control over his contribution, 11 C.F.R. § 110.1(h)(3), direct his money “in any way” to Smith, 2 U.S.C. § 441a(a)(8), or even imply that he would like his money to be recontributed to Smith, 11 C.F.R. § 110.6(b)(1).  His salience as a Smith supporter has been diminished, and with it the potential for corruption.

Slip Op. at 23-24.  Yet even if Justice Breyer was wrong, are the anti-earmarking provisions as unforgiving as the Chief Justice argued?  The FEC’s decisions suggest that they are not.

The Commission has required more to establish earmarking than a simple expression of donor support for a particular candidate.  For example, in MURs 4831 and 5274, the Commission settled with a state party over charges that it had earmarked contributions for its Senate candidate.  (The author represented the state party in that matter.)  But the Commission would not accept what two Commissioners called “the General Counsel’s broad earmarking analysis.”  Vice Chairman Bradley A. Smith and Commissioner Michael E. Toner, Statement of Reasons, MUR 4831 and MUR 5874.  The General Counsel appeared “to sweep within the classification of ‘earmarked’ contribution party fundraising that invokes candidates or urges support for their campaigns, when instead that activity should be (and is) regulated and disclosed as ordinary political party activity.”  In response, Commissioners Smith and Toner quoted the Supreme Court’s second decision in FEC v. Colorado Republican Federal Campaign Committee:

Donations are made to a party by contributors who favor a party’s candidates in races that affect them; donors are (of course) permitted to express their views and preferences to party officials; and the party is permitted (as we have held it must be) to spend money in its own right.

533 U.S. 431, 462 (2001).  “Consequently,” said the Commissioners, “unless the donor specifically earmarks his gift, we do not impose the original donor’s limit on party spending, even though the donor believed that by giving to the party he could assist the party’s nominees.”  Commissioners Smith and Toner were two of the five Commissioners who decided the matter; one Commissioner was recused.  But the fact remains that the Commission has declined to apply the sort of trip-wire approach to earmarking that Chief Justice Roberts described in his opinion.

Moreover, there is the question of what sort of information can even trigger a Commission earmarking investigation in the first place.  The Commission has said pretty clearly that there must be direct evidence of earmarking to open an investigation.  Decided in 2004, MUR 5304 involved allegations made by the National Republican Congressional Committee, by and through its general counsel, Donald F. McGahn II, that a House candidate used his state campaign committee to make contributions to his federal campaign through several state and local candidates and PACs.  The complaint juxtaposed contributions made by the state committee, with contributions received by the federal committee from the same donors.  But the Commission found no reason to believe an earmarking violation occurred.  As the General Counsel said: “The only facts provided by Complainant, derived from public disclosure records, show a series of contributions between respondents that are legal on their face. Proof that these contributions were actually made, therefore, would not be sufficient to show violations of the Act.”  First General Counsel’s Report, MUR 5304, at 8-9.

The Chief Justice’s dicta may well be cited in future Commission earmarking debates.  In their statement on the case, Commissioners Ann M. Ravel and Ellen L. Weintraub welcomed his “guidance to Congress and the FEC to strengthen transfer and earmarking rules.”  Statement of Vice Chair Ann M. Ravel and Ellen L. Weintraub on McCutcheon v. FEC. Their statement—and his “guidance”—show that the battle on this front has only just begun.