As FEC Commissioner Caroline Hunter likes to point out, the Federal Election Campaign Act (at 2 U.S.C. § 437d(a)(9)) (FECA) charges the Federal Election Commission (FEC) with “encourag[ing] voluntary compliance” with the law. Ironically, the same statute is so littered with counterintuitive and nonsensical provisions that they virtually ensure noncompliance. The FEC complaint filed by Citizens for Responsibility and Ethics in Washington (CREW) yesterday regarding biennial limits violations is a perfect case in point.
Individuals who make federal contributions to national political party committees, state political party committees, PACs, and candidates are subject to the following limits, respectively: $32,400 (per year); $10,000 (per year); $5,000 (per year); and $2,600 (per election). These contribution limits, for the most part, are generally adhered to because the recipients are liable for accepting excessive contributions. Recipients, therefore, carefully monitor their contributors’ limits, and refund any excessive amounts.
However, unbeknownst to most contributors, is the fact that they are personally liable for adhering to an additional limit on their giving. Under the so-called “biennial limit,” they are limited every two years to contributing a maximum of $123,200 in the aggregate (this limit is adjusted for inflation), of which no more than $48,600 may be given to candidates and no more than $74,600 may be given to all PACs and party committees. The $74,600 limit has its own sublimit – no more than $48,600 may be given to PACs and state political parties.
This obscure and counterintuitive limit, whose constitutionality is currently being challenged in McCutcheon v. FEC and James v. FEC (the latter brought by CCP), might as well be called the “biennial trap,” because every two years, unwary contributors inevitably run afoul of it. As the plaintiff’s opening brief in McCutcheon states, this provision is a “prophylaxis-on-prophylaxis,” in that the base contribution limits already sufficiently achieve the purpose of preventing corruption to candidates. There is no reason to have an additional set of limits on top.
As illustrated by the CREW complaint, the biennial limits are so obscure and counterintuitive that even super lawyer David Boies, who famously represented Al Gore in Bush v. Gore, is on the list of unwitting violators. If even an attorney of Boies’ stature can run afoul of the law inadvertently, the average person doesn’t stand a chance.
As a practitioner in this area, I suppose this would be the point at which I make my marketing pitch – where I emphasize that those participating in politics need to hire not just any attorney, but a campaign finance attorney. But that would be about as self-serving as a traffic lawyer who defends inordinately high fines for traffic violations. The biennial limits are indefensible. As the Supreme Court said in Citizens United, forcing citizens wishing to participate in politics to retain a campaign finance attorney is unconstitutional.
Some might argue that the inevitable perennial slip-ups over the biennial limit illustrate a need for the FEC to do a better job of public education. But public service announcements are generally only effective and justified if they address genuine problems, and contribution limits that are imposed upon contribution limits are not one of those circumstances. To put it simply, the biennial limits are not exactly worthy of a “Smokey the Bear” campaign, and no amount of public education is going ensure compliance with an otherwise illegitimate law.
