Lawsuit challenges contribution limit law favoring incumbents

The Center for Competitive Politics today announced that it has filed a lawsuit on behalf of a Florida couple saying that a law that often allows congressional incumbents to raise twice as much from donors to spend on their general election campaigns as compared to challengers is unconstitutional under the First Amendment.

Federal campaign finance laws limit campaign contributions to candidates to $2,600 for the primary election and $2,600 for the general election. However, donations of $5,200 are permitted through the day of the primary, though only half that amount can be spent on the primary race.

Incumbents, who rarely face a competitive primary, can raise up to $5,200 in a single contribution over a much longer time period than most challengers and often spend it all on the general election. A challenger, on the other hand, will usually have to defeat opponents in the primary election and have no primary funds left to spend on the November contest. The next day, challengers are hamstrung to raising just $2,600 per donor for the general election, effectively half the amount raised from many donors by incumbents.

“The law violates the Constitution by favoring incumbents over challengers,” said CCP President David Keating. “The challengers supported by our clients are running against incumbents who had no party opponent in their primary. They simply want to be able to donate the same amount to be spent for the general election as the incumbents’ donors.”

“Supreme Court rulings say contribution limits are constitutional only to prevent corruption or its appearance,” said Keating. “If one donor can give $5,200 the day of the primary election, why can’t another give the same amount to a challenger the day after the primary? Where’s the corruption?”

“Many House incumbents have been raising up to $5,200 for the November election for nearly two years,” said Laura Holmes, a plaintiff in the case. “Yet if you want to support a challenger after they win a primary, the maximum you can give is only half. That’s not fair.” Her husband and co-plaintiff Paul Jost said, “There is just one election that counts, in November. Why does the law say that a $5,200 check in June is okay, but that same check in July is illegal? That’s ridiculous.”

After Carl DeMaio won the nomination for the November election, Ms. Holmes donated $2,600 to his campaign against incumbent Scott Peters (CA-52), who had no party opponent in the primary. She wishes to give a total of $5,200 for the general election. Mr. Jost donated $2,600 to Mariannette Miller-Meeks after she won a hotly contested primary to challenge incumbent David Loebsack (IA-2), who had no primary opponent. He too wants to donate $5,200. Holmes and Jost are not challenging the overall $5,200 limit per candidate.

In the complaint, which was filed in the U.S. District Court for the District of Columbia against the Federal Election Commission, CCP Legal Director Allen Dickerson wrote:

“[T]he law allows a contributor to associate with an individual candidate up to $5,200 per election cycle. Ms. Holmes and Mr. Jost will abide by that limit. They do not wish, however, to split their contributions between the primary and general elections in order to fully exercise their associational rights. Instead, they wish to give to candidates challenging incumbents who did not face significant opposition from within their own political party.”

Simply because Ms. Holmes and Mr. Jost wish to support the victor of the primary against the incumbent, they can give only half as much money as many contributors who have already supported the opposing party candidate. Ms. Holmes and Mr. Jost therefore have their First Amendment rights of association diminished due to factors entirely outside their control. The Fifth Amendment guarantee of equal protection under the law also bars such laws.

“Every candidate,” said Keating, “challenger or incumbent, should have an equal opportunity to raise funds and voice their message for November’s election. We are filing this suit to defend this important First Amendment right.”

A copy of the complaint, which was filed late Monday, is available here. A backgrounder on the litigation can be found here.

The Center for Competitive Politics is now the Institute for Free Speech.