The press about super PACs is heating up: there are articles popping up all over the place—here, there, everywhere.  There is at once a general sense that major change is overtaking the campaign finance system, and no agreement about what it means or what, if anything, should be done about it.  So the old arguments continue.  Often they make no difference.  Sometimes they make matters worse.

Consider the recent decision issued by the United States District Court in Holmes v. Federal Election Commission, No. 14-1243(RMC), 2015 (WL 17788778 (D.D.C. April 20, 2015).  Holmes brought a complaint against the contribution limits in one particular and, some would argue, peculiar application.  Congress structured the limits on a “per election” basis:  indexed for inflation, the individual per election limit is now $2700, $2600 in the last cycle.  But this limit works differently for different classes of candidates.  A candidate actually or effectively unopposed in the primary can collect a full contribution for that non-event, then immediately collect the same amount from the same contributor for the general and spend all of it in the later election—a sensible move, because she has no other election in which to spend it.  The opposing candidate who must struggle through the primary will use up the limit for that election and have only $2700 left for the general.

Holmes believes that this is wrong, and a constitutional wrong at that: that it denies her the right to commit the full lawful amount to the candidate she supports in the general election, and that it advantages incumbents who are most likely to avoid primary competition.  The Court disagreed, characterizing her challenge as a “veiled” attack on the contribution limits overall.

Meanwhile, Super PACs now roam the land and its critics see them, with some justification, as instruments by which the contribution limits are rendered meaningless.  One presidential candidate appears prepared to anoint one as more or less an affiliate of his campaign, charged with a number of major functions that would discharge “independently.”   Contribution limits seem quaint in this new world.   With their utility in question, it seems that they should at least make sense and candidates should not be given yet another reason to give up on them altogether—or, to borrow from Dr. Strangelove, to stop worrying and learn to love the Super PAC.

Yet the Holmes Court is certain that it is being conned, and repeatedly citing Buckley v. Valeo, it is determined to hold the line: the limit is $2700 per election, at least for some candidates, and that is that.  It is unimpressed that candidates fortunate to lack meaningful or any primary opposition may routinely collect $5400 for the general election, having only to manage the timing, and that both the candidates and the contributor are well aware that this is this the amount being given for the one election.  It puts no weight on the Supreme Court’s assertion in McCutcheon v. Federal Election Commission that “Congress’s selection of a $5,200 base limit indicates its belief that contributions of that amount or less do not create a cognizable risk of corruption.” 134 S. Ct 1434, 1452.  Here the Holmes Court’s concern is to keep up appearances: that the per election structure allocates limits to specific elections within the election cycle, that it does not favor incumbents, and that it bears a relationship to the prevent of corruption.

No one would reasonably argue that the prospects for viable contribution limits stand or fall on the issue presented in Holmes.  But the credibility of the campaign finance laws is on the brink of ruin, and it cannot help to decline to examine the 1974 structure in the light of experience and contemporary political realities.  To do so is not a “veiled” attack on the contribution limits, as the Holmes Court suggests, but an example of what may be necessary to save them.  The candidates convinced that the 1974 system no longer works will feel compelled to consider, or they will learn to love, the alternatives.

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