Florida Couple Takes First Amendment Challenge to Supreme Court

Timing of federal contribution limits restricts speech and favors some candidates over others, says Institute for Free Speech

Alexandria, VA – The Institute for Free Speech today announced it has asked the U.S. Supreme Court to review the ruling in Holmes v. Federal Election Commission by the U.S. Court of Appeals for the D.C. Circuit. The case challenges the timing of federal contribution limits, but not the amount.

“Current law allows a federal candidate to receive up to $5,400 from a donor throughout an election cycle. Of this total, however, only $2,700 may be contributed during the general election. The government has never provided a reason for imposing this restriction on the timing, rather than extent, of an individual’s ability to associate with candidates,” said Institute for Free Speech Legal Director Allen Dickerson.

In 2014, a Florida couple – Laura Holmes and Paul Jost – wished to donate to challengers of some incumbent members of Congress. Holmes and Jost, citing language from the Supreme Court’s 2014 opinion in McCutcheon v. Federal Election Commission, argue that Congress has permitted the giving of $5,400 over an election cycle. Simply because the couple prefers not to get involved in primary contests is no reason to halve their right to make a contribution.

“There is just one election that counts, in November. Why does the law say that a $5,400 check in June is okay, but that same check in July is illegal? That’s ridiculous,” said Mr. Jost.

The Court of Appeals ruled otherwise in a November 2017 opinion. Citing the Supreme Court’s 1976 decision in Buckley v. Valeo, the D.C. Circuit ruled “as long as a contribution limit is not so low as to prevent candidates from mounting effective campaigns, the judiciary would generally defer to Congress’s determination of the limit’s precise amount. We conclude the same is true of Congress’s intertwined choice of the timeframe in which that amount may be contributed.”

In a brief filed February 26th, the Institute for Free Speech says that’s wrong. Under Buckley, contribution limits are “subject to the closest scrutiny.” Yet this restriction serves no apparent purpose at all.

Congress “has determined that ‘it is perfectly fine’-that is, non-corrupting-‘to contribute [$5,400] to’ a candidate for federal office. But the Federal Election Campaign Act (FECA) requires that non-corrupting amount to be contributed in two installments: [$2,700] for the primary and [$2,700] for the general election. In practice, this means that a candidate without a serious primary opponent can effectively receive, and the donor give, [$5,400] for the general election. But where a donor, like [Ms. Holmes and Mr. Jost] wishes to forego a contested primary, and instead give solely to her party’s eventual general election candidate, she may contribute just [$2,700],” says the brief.

Imposing separate contribution limits for primary and general elections gives an unfair advantage to candidates who run unopposed in primaries. It also arbitrarily restricts the speech and association rights of donors who want to give during a general election. The Institute for Free Speech’s brief asks the Supreme Court to secure First Amendment rights to support and associate with candidates.

The Institute for Free Speech’s brief can be read here. The Court of Appeals ruling is here. More information and commentary about the case is available here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

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