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).
The de Blasio campaign finance investigation ended with explanations from federal and state authorities of their decision not to pursue charges. The Manhattan District Attorney Cyrus Vance, Jr. chose to give the lengthier account: ten pages of conclusions of law and facts in a letter to the State Board of Elections, which had referred the matter for investigation. Yet again in recent legal history, the prosecutor declines to prosecute but does not stop there, adding his disapproval of the conduct he would not indict. He also suggests how the law could be improved so that it more directly, clearly prohibited the actions he does not approve of. The letter is something less than a model for productive prosecutorial encounters with the political process.
The District Attorney is passing on a case that involves a coordinated campaign of candidates, party leaders and party organizations to deliver support to targeted State Senate races. The question was whether party county committees became conduits for contributions to candidates that were larger in amount than what the candidates could accept directly. Donors were solicited for contributions to the parties, and the parties promptly provided the money to the campaigns for immediate use in paying their consultants. The coordinated campaign drew up plans for this arrangement with the county committees and submitted them to legal counsel for review. Counsel then approved of what the prosecutors refer to as an “end run” around the candidate contribution limits. The lawyer put his advice in writing and stayed in close contact with the client, providing “consistent advice” from planning to execution. The DA found no evidence of “bad faith” in the way the advice was sought or delivered.
The Federal Election Commission’s job is hard, harder than many will admit, but the agency somehow manages to make it even harder. So now, five years after the fact, the FEC has decided not to investigate a donor's alleged use of an LLC to mask a $1 million contribution to a Super PAC. The word of the non-decision got out before any member of the FEC could explain it or any of the case materials were released.
So naturally the agency looks somewhat silly. Some might and do ask: how could it be that the alleged establishment of an LLC to mask the true source of a large contribution isn't even subject to an investigation? And why would it take almost five years for that inconclusive result to be reached? Maybe the case files once released, along with the explanations of the different Commissioners, will provide some answer to those questions.
The case did take an unusual turn in 2011 when the individual donor came forward, claimed that a lawyer had advised him that he could do this, and asked that the Super PAC amend its reports to disclose him as the true donor. In other words: on the date that the complaint was filed and before the FEC began its review, the harm of the particular case was being redressed. And presumably complicating matters was the donor’s contention that he acted on legal advice.
The case brought by the Independence Institute against the “electioneering communication” disclosure requirement enacted by McCain-Feingold could prove to be highly significant. This is an as-applied challenge; it contests the mandatory reporting of a "pure" issue ad if, within specified days prior to an election, it refers to a public official who is also a candidate for federal office. Some believe that this claim was foreclosed by McConnell v. FEC and Citizens United. Independence Institute disagrees, arguing that the Court has never held that issue speech loses constitutional protection against disclosure, including donor disclosure, just because it airs during an election season.
What may stand in the way are summary comments the Court has made, most notably in Citizens United, where the Justices suggested that it did not matter to the application of the electioneering communication requirement whether a communication contained the “functional equivalent of express advocacy.” 558 U.S. 310, 369. One reading is that the Court had no patience with disclosure objections, end of story. Even a "pure" issue ad—even such an ad run with no apparent electioneering interest or motive –is subject to disclosure if it includes a reference to a public official who was a candidate.
Perhaps this is what the Court intended to say, but this interpretation puts considerable weight on general statements and very little or none at all on the line of authority established by Buckley that campaign finance law could not override the distinction in the constitutional law between campaign and issues speech.
One line of argument in the McDonnell case briefing accepts that supporters might expect some preferential treatment—“procedural access,” like a meeting—but not official influence to carry the supporter’s case on the merits. This is one way that routine politics would be distinguished from corrupt politics.
Professor Jeffrey Bellin, thoughtfully but also passionately, says that this won’t do, and that routine politics, including rewarding supporters with access, ought to be criminalized. Getting any preferential consideration for money is quid pro quo corruption. If the Court will establish and hold this line, Professor Bellin argues, it will reduce the significance of money in politics and “the big money will dry up.”
One question is how the Court would fashion a workable rule along these lines. Without a “per se rule” barring an elected official from ever scheduling meetings with a contributor, or making similar accommodations, the approach Bellin favors would require scrutinizing the motives, often mixed, of politicians. A politician might schedule a meeting requested by a contributor because she has given, but also because she has something to say that the elected official would like to hear. Or the politician might even have something to say to the donor—something she, the politician, would like to have understood by the industry or interests that a donor might represent. The contributor might also have provided other forms of support that the officeholders might wish to recognize—like help on the campaign trail. It is difficult to say where the raw politics end and the rotten, corrupt kind begin, and no easier to believe that prosecutors and courts are in the best position to judge the question.
But there are additional problems with this emphasis on money. Supporters who deliver votes, endorsements or favorable media commentary are also banking plenty of goodwill with an elected official, and they will also expect that their calls will be returned and that their requests for meetings will be answered affirmatively. They are being recognized for their political speech (and other actions that are expressive in character). Why would giving money, within the legal limits of the law, be treated as somehow so different that we would deny these speakers comparable treatment, then subject them to the criminal laws if they get it? In what way is money different?