If the contribution limits are not violated, then their everyday normal operation generally escapes notice.  We just assume regular order; the campaign finance law works as it should.  A donor gives within the limit, the donation is reported, and all is well.  The Center for Competitive Politics has challenged this complacency and raised one interesting question about the limits as they are now structured.

Right now, CCP points out, an incumbent can collect a full $2,600 for a primary election she is certain to win, perhaps even one in which she draws no opponent, and beyond that, even an “election” in which, unopposed, she does not appear on the ballot by operation of state law.  She can save this money for  the general election, and then add to it a separate $2,600 given by the same contributor specifically for that same general election—for a grand total of $5,200.  But a contributor to her opponent who has not given before the primary is limited to giving $2,600 for the general election to that candidate. CCP alleges First Amendment and Equal Protection violations. If $5,200 does not corrupt one candidate, it cannot corrupt the other, and the difference should not be one of timing resulting from the “artificial distinction between primary and general elections.”  Complaint at ¶ 18, Holmes. v. Federal Election Commission, No. 1:14-cv-01243 (D.D.C July 21, 2014).  The asymmetry here benefits the incumbents who most often can escape primary competition and can save most of the money for the general.

This may seem a small problem, hardly worth worrying about when Super PACs can accept unlimited contributions and 501(c)(4)s operate (mostly) outside the FECA.  But it is for just the reason that regulation is lagging behind profound changes in constitutional law and political practice that an issue like this takes on added importance.  Candidates and political parties could use all they help they can get.  The rights of contributors, not all of them the much criticized mega-donors, are also appropriately considered. Meanwhile, those groups active on the “outside” of the regulated system are prospering.

CCP’s suit may lead to other questions about the construction of current limits—on similar theories about restrictions that are distantly related, if at all, to corruption concerns but that burden speech and association.  Among the questions that may come to be debated:

1. The parties can expend substantial sums in coordination with their Presidential, Senate and House candidates but only “in connection with the general election.” This limitation adds time and complexity to the administration of the limit. It has little obvious effect on discernible public policy objectives, and the case can be made that parties can best decide how to allocate the available spending limit for the benefit of their candidates.

2.  Family members cannot contribute in excess of the limit.  Critics will say that Dad or Mom, Brother or Sister, are not purveyors of corruption, and that the argument for treating these contributors like all others is no better if it is built on considerations of “political equality.”  The current system is already biased toward candidates with family wealth.  With the best legal advice that money can buy, the family can arrange to move its money under current rules to the aid a relative’s campaign, only less efficiently.  Some are setting up Super PACs.  At this point in the experience with the campaign finance laws, one option would be to allow family members to give directly without limit and save trouble all around.

3.  The limits constrain candidates’ fundraising to retire campaign debts.  Debt retirement contributions can be made, but only if the donor has not previously used up the limit for the election in question.  The rule is highly favorable to incumbents, and to successful challengers or open seat candidates.  They can look forward to a host of suitors from the ranks of those who didn’t support them the first time and are anxious to make amends by helping with a debt. Losing candidates can go some time with a debt—years in fact: very few (outside the family) have any incentive to throw money after a dead, losing campaign.  One question is whether those rules could be sensibly amended to permit family support, or a more general measure of relief from contribution limits for the losing candidate.

The CCP suit over the per-election limits is a reminder that that there are varieties of  “reform.” The type we hear most about is full of sizzle, put into motion by the headlined issues of the day. But in the background is a statute that is old, in disrepair and had its share of design defects in the first instance. It seems that it is also worthy of attention.

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