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July 27 — A challenge to Federal Election Commission rules setting separate contribution limits for primary and general elections is set to be argued in October before the full U.S. Court of Appeals for the District of Columbia Circuit ( Holmes v. FEC, D.C. Cir., 16-5194, order 7/15/15 ).
An order from the appeals court this month set the argument date for Oct. 31 before the en banc D.C. Circuit.
The development followed a D.C. Circuit panel ruling earlier this year, which said lower courts are required to give special treatment to legal challenges of campaign finance law, even when such cases appear to involve “settled law” (See previous story, 04/27/16).
Provisions of campaign finance law put such challenges on a fast track for resolution by federal appeals courts or the U.S. Supreme Court.
The case set for en banc argument involves a challenge to campaign contribution rules brought by a married couple, Laura Holmes and Paul Jost. They argued that having separate contribution limits for primary and general elections is unfair and unconstitutional because it advantages some candidates—often including incumbents—who face no primary challenge. Under current FEC rules, such candidates can use primary contributions to fund a general election race.
Holmes and Jost are being represented in the case by the nonprofit Center for Competitive Politics, a critic of campaign finance regulation.
Attorneys for the FEC have argued that the Supreme Court has consistently upheld the constitutionality of campaign contribution limits, including separate limits for primary and general elections. However, the D.C. Circuit panel ruling in April said it was not “frivolous” to challenge such contribution limits.
“What may appear to be ‘settled' Supreme Court constitutional law sometimes turns out to be otherwise,” the panel ruling said. The court opinion cited recent Supreme Court campaign finance rulings in Citizens United v. FEC and McCutcheon v. FEC.Contribution
The panel opinion was written by Judge Raymond Randolph of the D.C. Circuit and joined by Judge Karen LeCraft Henderson. D.C. Circuit Chief Judge Merrick Garland was on the three-judge panel that considered the case but did not participate in the opinion.
Garland has been nominated by President Barack Obama to serve on the Supreme Court. While his nomination awaits Senate confirmation, Garland has recused himself from a number of pending D.C. Circuit cases.
Garland did not participate in the per curiam order scheduling oral argument before the en banc appeals court, according to the court docket.
Randolph's 13-page opinion for himself and Henderson said: “We…do not think a district court may decline to certify a constitutional question [under campaign finance law] simply because the plaintiff is arguing against Supreme Court precedent, so long as the plaintiff mounts a non-frivolous argument in favor of overturning that precedent. That the plaintiff will be fighting a losing battle in the lower courts does not necessarily make the question ‘obviously frivolous,' or ‘wholly insubstantial,' or ‘obviously without merit.' ”
At an oral argument in January, FEC attorney Erin Chlopak sought to uphold the current contribution-limits scheme by telling the appellate judges: “A legal question settled by the Supreme Court is wholly unsubstantial.”
At the district court level, Judge Rosemary Collyer initially granted summary judgment to the FEC and issued a ruling upholding the per-election limits. Collyer's ruling said that it may seem unfair that some candidates can use primary contributions for the general election, but that did not justify striking the separate contribution limits.
“The Court recognizes Plaintiffs’ frustration that a contributor cannot give $5,200 to a candidate for use in a general election but may give $2,600 to a candidate the day before the primary and $2,600 the day after the primary, and that the regulation allows a candidate to transfer unused primary funds for use in the general election,” Collyer's ruling said.
The opinion referred to contribution limits in effect for the 2014 elections. The limits have been adjusted for the 2016 election cycle to $2,700, per election, or $5,400 for the primary and general election combined.
The district court judge went on to say that the permissibility of candidates' use of primary contributions in the general election is solely the result of the regulation written by the FEC. Neither Congress nor the Supreme Court has ever authorized contributors to give up to the total amount of the primary and general limit for use in a general election, she said. But, Congress did establish per-election limits on contributions, which have been upheld by the Supreme Court since the landmark Buckley v. Valeo ruling in 1976.
The lawsuit filed by CCP on behalf of Holmes and Jost argued that relatively few incumbent members of Congress faced competitive primaries in 2014, yet incumbents often raised $5,200 per individual donor—$2,600 before the primary and $2,600 after it—and spent it all on the general election alone.
A challenger, on the other hand, will usually have to defeat opponents in the primary election and will have no primary funds left to spend on the November contest, the lawsuit argued.
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