More Soft Money Hard Law: The Contribution Limits As We Have Them, and the Varieties of Reform (In the News)

By Bob Bauer
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.