Holmes vs. FEC: An Uncertain Future for Primary & General Election Contribution Limits

“Per election” contribution limits restrict how much money donors can contribute to a campaign during the primary and general elections. For the 2016 election cycle, the FEC increased these limits to allow contributions of up to $2,700 in the primary and up to $2,700 in the general election. However, the future of “per election” limits may be uncertain.A case challenging the constitutionality of these limits is currently being litigated in federal court. In 2014, donors Laura Holmes and Paul Jost filed a case claiming that the “per election” limits abridged their First and Fifth Amendment rights. The district court initially dismissed both claims, but the plaintiffs’ appeal was heard in 2016.The Center for Competitive Politics, which filed the lawsuit on behalf of the plaintiffs, justified the case by explaining that the plaintiffs still wish to abide by contribution limits set by Congress but see the split between primary and general elections as an infringement on their Constitutional rights. According to Allen Dickerson from the Center for Competitive Politics:

“[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.

First, Holmes and Jost claim that the “per election” limits favor candidates who do not face primary challengers – and their donors. A candidate who did not face a primary opponent can transfer surplus primary funds. Effectively, the candidate could use an entire $5,400 contribution during the general election campaign – based on limits for the 2016 cycle. Conversely, a candidate who faces a primary challenger is likely to spend a $2,700 contribution designated for the primary election during the primary, but he or she can then only accept $2,700 during the general election.The plaintiffs claim that the resulting “asymmetry” violates the Fifth Amendment. However, the appellate court dismissed this challenge because it arose from FEC regulations regarding the timing of contributions and the transfer of campaign funds, not the limits in the Federal Election Campaign Act.Secondly, the plaintiffs state that, as donors, they principally wish to support their party’s nominee. They only want to contribute to the campaign during what they consider the most important part of the race, the general election. The donors would like to contribute $5,400, the total amount already permitted, to a candidate’s general election campaign. As a result, they claim that the current “per election” limits infringe on their First Amendment rights to participate in the democratic process through campaign contributions.A 2014 Wall Street Journal editorial agreed:

"The artificial distinction between primary and general elections also makes it harder for less ideological or partisan donors, who may be less involved in primaries, to make their voices heard in the general election. A glance at the most competitive House races for 2014 shows that nearly all incumbents have a cash-on-hand advantage over challengers. Rigging the donation game for incumbents is no justification for limiting political speech."

In April 2016, the appellate court decided that the First Amendment challenge was not “wholly unsubstantial” and deserved to move forward in the judicial process. The appellate court returned the case to the district court, which must certify the First Amendment challenge to the court of appeals before a ruling can be issued. While appellate court will hear the question again in the near future, Holmes vs. FEC has the potential to reach the Supreme Court, like many recent  cases involving political contributions.While the elimination of “per election” contributions seems unlikely, given the uncertainty of the Supreme Court’s makeup, such a ruling is possible. However, current contribution limits will stand for the 2016 cycle. According to the FEC:

• If a donor contributes more than $2,700 to the primary campaign:
  • The campaign can make a “presumptive re-attribution” to another joint account holder whose name appears on the check, if he or she has not also reached the contribution limit.
  • The campaign may ask the donor for permission to re-designate the surplus funds to the general election campaign.
  • If the donor does not agree to re-designate the funds, the campaign must refund the surplus contribution.
• If a donor designates a contribution to the general election during the primary:
  • These funds should not be spent until after the primary election.

• If a donor designates a contribution to the general election, but the candidate loses the primary:
  • If the candidate plans to seek office again, the campaign may contact donors and ask for permission to re-designate the funds to another campaign committee that belongs to the same candidate.
  • If donors do not agree to re-designate the funds, the committee must refund the contributions.

• If a donor contributes more than $5,400 during an election cycle:
  • The campaign can make a “presumptive re-attribution” to another joint account holder whose name appears on the check, if he or she has not also reached the contribution limit.
  • Otherwise, the campaign must refund the surplus contribution.

For more information, see the FEC candidate guide.This article was posted for informational purposes only and should not be construed as legal advice.