More Soft Money Hard Law: Contribution Regulation and Its Critics (In the News)

By Bob Bauer
When the Supreme Court took up the McCutcheon case, and again when it was decided, commentators suggested that the Court might be poised to reconsider the constitutional foundations of contribution regulation. The Justices had done what they needed to do to expand and solidify the right to independent spending; now they would turn their attention, in the same deregulatory spirit, to contribution limits, perhaps laying the foundation for invalidating them. McCutcheon does not by its terms really justify this fear. It did direct attention to the question of how—and not whether—contributions are regulated. And other cases percolating in the court system have begun to confront those questions.
An example is Holmes v. Federal Election Commission, — F.Supp.3d —-, 2014 WL 5316216 (D.D.C., 2014). The plaintiffs wished to support a challenger in the general election at the same level as the supporters of the incumbent. While in theory, the limits are the same for both—$2600 per election—the incumbent could collect from a donor the full amount for an uncontested primary and then combine this unspent amount with another contribution, given under the general election limit, from that same donor. The donor’s effective general election limit would be $5200. Another contributor who planned to oppose this incumbent, but did not support a candidate in the primary to select the challenger, would have only $2600 to give the winner for the general election. Not so good for the challenger; very good for the incumbent.
The District Court brushed this claim aside and found no constitutional violation. The limits were formally the same for each candidate, the Court concluded: any iniquities were a byproduct of political chance—“the vagaries of the election process”–and the contribution limits still served their anti-corruption purpose. 

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