The FEC will be defending the “structure” of the contribution limits this week in the US Court of Appeals for the District of Columbia. The case, Holmes v. Federal Election Commission, tests the constitutionality of the “per election” limits as applied to a donor’s choice to participate only in the one–the general–election. If a donor skips a primary, and wishes only to contribute in the general, she now cannot give the full amount allowed for the election cycle cycle, $5400, but only half of that: $2700, the “per election” limit for the general. The Holmes plaintiffs’ point is that this bifurcation of the limits serves no legitimate anti-corruption purpose. Donors do not potentially corrupt candidates in the primary, or the general, or a run-off: the corruption, if it occurs, is the result of the amounts given through the date that the candidate is elected to office, after which the new officeholder is in a position to return the favor. And the limit Congress settled on to serve this anticorruption interest is the combined allowance for the cycle, $5400, a point that the Supreme Court stressed in McCutcheon.
The problem presented by the bifurcation of the limits is worsened by the messiness of its application. Incumbents and other largely unopposed candidates do well under this system, collecting money for primaries they don’t have to compete in and transferring the money to their general election accounts. Both the candidates in this position and their donors are aware that the money being given to the “primary” is really for the “general.” And a candidate can collect a contribution designated for the general election before the primary election is decided, provided that the candidate escrows the money and does not spend it until after the date of the primary. In this case, the candidate has, in fact, accepted a full cycle contribution of $5400 prior to the general election. It may be subject to a restriction on when it is spent, but the donor looking to make an impression, with a full cycle’s worth of contributions before the primary, will have done so. Or, knowing that a primary candidate is closing in on victory, a donor can give the full primary election amount the day before the primary, and the full general election amount the day after, with confidence that he or she has given $5400 for the general election.
And add to all this that by FEC rule, an opposed candidate who, by operation of state law is not even on the ballot may still raise a “primary” or “general” election contribution in the full amount. The regulation reads:
A primary or general election which is not held because a candidate is unopposed or received a majority of votes in a previous election is a separate election for the purposes of the limitations on contributions of this section. The date on which the election would have been held shall be considered to be the date of the election.
11 C.F.R. 110.1(j)(3).
To this, one can respond: no system is perfect. At some point, however, the illogic and internal inconsistencies of a regulatory system catch up with it. Defending this arrangement just adds to the inefficiencies and cost of compliance with the “regular” campaign finance system, and to the reasons why candidates and parties flee from it. Right now a candidate is more exposed to penalties for accepting a contribution of $2800 rather than $2700 than for encouraging the establishment of a Super PAC and staying close to it without violating “coordination” rules.
Of course, enforcement energy can always be dedicated to both the “regular” system and the one springing up outside of it that includes Super PACs and other such innovations. But it is also clear that the constitutional ground on which the second of these two battles is waged is unfavorable to advocates of campaign finance limits. As discouraging to them as this may be, it is not clear why it is wiser for them to then just double down on the anachronistic features of the regulatory system, like the per election limits. A better course might be to reform of those features, jettisoning what is useless and making it easier for candidates and parties to work within a scheme of sensible drawn rules.