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FEC Record: Advisory Opinions

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AO 2012-14 Individual May Not Exceed Biennial Limit

As an individual donor, Shaun McCutcheon is prohibited from making aggregated contributions to federal candidates in excess of $46,200 during the 2011-2012 election cycle. The Federal Election Campaign Act (the Act) limits the amount an individual can donate during a two-year period to an aggregate of $117,000 to all federal candidates, PACs and parties. Under the Act’s biennial limit, an individual’s aggregate contributions may not exceed $46,200 to all federal candidates and $70,800 to all PACs and parties.


Mr. McCutcheon has currently made contributions totaling $7,500 to federal candidates and their principal campaign committees so far during the 2011-2012 election cycle. Mr. McCutcheon wishes to make another contribution of $2,500 to an unnamed federal candidate and 25 other contributions of $1,776 to federal candidates during the remainder of the 2011-2012 election cycle. In all, McCutcheon wished to donate a total $54,400 to federal candidates during the 2011-2012 election cycle.


In Buckley v. Valeo, 424 U.S. 1,38 (1976), the Supreme Court upheld the Act's then-limit on aggregate contributions by individuals of $25,000 per calendar year as a "quite modest restraint upon protected political activity [that] serves to prevent evasion" of the limit on contributions to candidates. The overall limit on contributions to candidates, political party committees and other political committees passed constitutional muster, the Court found, because it was "no more than a corollary of the basic individual contribution limitation."

In the Bipartisan Campaign Reform Act of 2002 (BCRA), Congress increased the overall individual contribution limitation to $95,000, an increase designed to reflect increases in the price index since the limit had passed in 1974. Congress divided the overall limit between a limitation on contributions to candidates at $37,500, and a limit on contributions to other committees at $57,500. Id. (codified at 2 U.S.C. §441a(a)(3)). Congress then indexed each of these limits to reflect increases in inflation, and the current overall limit on contributions to candidates, as indexed to reflect increases in the price index, is $46,200. Thus, Mr. McCutcheon is limited to contributions to candidates and candidate committees aggregating no more than $46,200 during the 2011-2012 election cycle. Consequently, if he makes contributions totaling in the aggregate $54,400, Mr. McCutcheon will be in violation of 2 U.S.C. §441a(a)(3).

Mr. McCutcheon asked the Commission to find these congressionally imposed limits of 2 U.S.C. §441 a(a)(3)(A) to be unconstitutional. However, the Commission lacks the power to make such a finding. See Johnson v. Robison, 415 U.S. 361,368 (1974) (adjudication of constitutionality is generally outside an administrative agency's authority); Robertson v. FEC, 45 F.3d 486,489 (D.C. Cir. 1995) (noting in the context of the Commission's administrative enforcement process that "[i]t was hardly open to the Commission, an administrative agency, to entertain a claim that the statute which created it was in some respect unconstitutional"). Since no court has invalidated the limitation in section 441a(a)(3)(A) on constitutional grounds, the Commission is required to give it full force.

Thus, Mr. McCutcheon may not make contributions to federal candidates during the 2011-2012 election cycle in excess of the $46,200 aggregate limit.

Date Issued: April 27, 2012; Length: 3 pages.

(Posted 5/9/12; By Alex Knott)



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