This is a guest post from Bob Biersack. He spent many years on the staff at the Federal Election Commission, first as statistician and later as press officer.  He is now a senior fellow at the Center for Responsive Politics.

Ray La Raja made some interesting points in his post last week about McCutcheon v. Federal Election Commission.  I’m not as sanguine as he is about this case, and I think each of his points deserves a little more consideration.

First, Ray argues that the current direct contribution limit for people giving to candidates ($2,600 per election) is very low.  He goes so far as to note that $2,600 is about 0.18% of the $1.4 million or so the typical House winner spends in a campaign.  There are a couple of nits to pick with this description.  First, the $2,600 limit is, of course, a “per election” limit, and virtually every candidate for federal office participates in at least two elections (a primary and a general) in each cycle.  So, the proper way to describe this boundary is that the existing limit is effectively at least $5,200 per candidate.   That means that just under 300 people are able to fully fund the typical House winner under existing limits without a penny from PACs or parties or other campaigns — not exactly requiring a groundswell of support.

But this also means that the number of candidates to whom one could give the maximum under current rules is really only nine, not the 18 Ray mentions.  This was clearly a central concern of Supreme Court Chief Justice John Roberts during oral arguments, and it does seem like an awfully small number.  It is, however, three times the number of actual Congressional representatives that any single donor has.  And it ignores the ability of those same donors to give to Leadership PACs created by the same candidates and/or others (we even see these created by challengers or open-seat candidates before they win these days), along with national and state party committees that support many candidates and  PACs organized around issues or ideological positions who can also receive contributions from a donor who has reached the nine-candidate limit.  So, the existing system allows for pretty direct support of many candidates and coalitions (e.g. parties).

Ray also discusses the justices’ concern about whether the specific contribution limits could be circumvented if the overall limit were to disappear.  Ray and others are skeptical of byzantine schemes one might weave, such as the rise of PACs focused on a small group of candidates who could each take $5,000 from individuals who really want to support that same small group.  This is no doubt complicated, and there are some (actually pretty modest) restrictions on how it might be accomplished. But those of us who have been around campaign finance for a few years have seen plenty of byzantine schemes that seemed too clever by half but still were used.  I would offer as examples the bizarre set of state Republican Party committees that participated in the  joint fundraising effort for Mitt Romney in 2012 (trying to hide where the money would really go or just find faithful servants who would make the unlimited transfers to other states as the campaign wished?), and the use of the reporting schedule to game disclosure for some groups who either register or change their reporting regime from quarterly to monthly, or vice versa, to delay revealing their activity. (Neither of these seems very worthwhile in the greater scheme of things, but both felt right to some strategists looking for any advantage possible – even if it was more imagined than real.)

It was clear from the oral argument that PAC proliferation wasn’t the only circumvention people are concerned about.  Perhaps the most discussed number in the court on Tuesday was $3.4 million (more or less), which was posited as the theoretical maximum contribution that might be given to a single joint fundraising committee supporting one party’s candidates.  The important connection between the multimillion-dollar donor and the party leader or elected official who solicits this kind of contribution was also discussed at some length before the high court, but doesn’t factor in Ray’s analysis.  This is surely where a corrupting influence might lie, and the chief justice also expressed concern about those contribution levels.

The other important points Ray makes are that the existing specific limits are too low and that they serve to drive funds away from the moderating effects of internal participants (mainly parties).

The soft money days are still fairly fresh in my memory, though, and I struggle to see the moderating influence of those parties or why we should think that greater institutional wealth could have hindered the insurrection Republicans have experienced in recent years.  The advertising purchased by national parties in the ’90s or early 2000s would be hard to describe as moderate.  In substance it felt no different to me than the most aggressive messages pursued by outside groups today.  The specter of party and elected officials offering exclusive meetings or White House sleepovers to the highest bidder did not foster a feeling that the parties were in any common sense “responsible.”  And would we want to argue that Texas Republican David Dewhurst  would be working in Washington in place of Sen. Ted Cruz today if only the Republican Party had higher contribution limits?  Even the outside spending totals were nearly equal in this and other 2012 primaries where insurgent candidates won.

Parties have also consistently demonstrated their ability to adapt to changing environments, and the move to funding of “outside” groups is no exception.  The list of largest outside spending groups in 2012 is dominated by organizations controlled and operated by individuals who would otherwise be expected to hold important positions in a Romney or Obama administration or in the two parties.  Groups like American Crossroads, not to mention Majority PAC and House Majority, along with the groups created to support specific presidential candidates, were managed by mainstream party loyalists on both sides whose actions seemed indistinguishable from what the parties had done in the past and continued to do in the 2012 campaign.

In the end I come back to something Ray points out that I find pretty important.  There is simply no empirical evidence that these overall contribution limits are inhibiting people from being as active as they choose in offering financial support to candidates and others.  The 646 individuals who approached the overall limit last year (or the 200 or so who did the same in 2008 before the rise of unlimited outside groups) do not suggest that these limits are pushing donors in other directions in order to fully and freely express themselves.

I don’t know if the Supreme Court will retain these limits, and it’s hard to argue with the suggestion that they don’t mean so much anymore in the era of “anything goes” expenditures.  But we’ve created this muddled system incrementally with legislative, regulatory and judicial choices, and I don’t necessarily think that the only logical answer now is to simply allow more money from fewer sources to flow freely throughout the process.