Perhaps no citation has been more favored in Federal Election Commission (“FEC”) decisions over the past decade than Heckler v. Chaney, 470 U.S. 821 (1985), a Supreme Court decision that gives an agency broad discretion over which enforcement cases to pursue. But there is a category of cases where the FEC is not employing Heckler when it should: Cases where the constitutional support for the statute no longer exists. See Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 993 F.3d 880, 884 (D.C. Cir. 2021) (“New Models”); see also Citizens for Responsibility and Ethics in Washington v. American Action Network, No. 18-CV-945, 2022 WL 612655, at *2 (D.D.C. Mar. 2, 2022) (holding that an FEC dismissal that was supported by “constitutional doubts” that “militate in favor of cautious exercise of our prosecutorial discretion” was judicially unreviewable under Chaney).
The FEC continues to pursue enforcement penalties in several categories of cases where there is almost no chance that a majority of the Supreme Court would find the statute constitutional. This resembles a sort of regulatory Russian Roulette, where the agency pursues enforcement actions until it finds a respondent that is willing to fully litigate the constitutional issues, mostly likely in a case with plaintiff-friendly facts. The risk for the agency is that when one of these cases eventually comes before the Supreme Court, the justices may use a hammer, rather than a scalpel, in striking down the law.
In two areas in particular, the FEC should exercise its prosecutorial discretion to decline to pursue cases based on statutes and regulations of dubious constitutionality.
A Person Cannot Corrupt His or Her Spouse With a Campaign Contribution, No Matter How Large.
Currently, the FEC follows the Supreme Court’s decision in 1976 to rather tentatively uphold the application of the contribution limits to contributions from intimate family members in the same way as contributions from lobbyists and corporate and union PACs. But the law has evolved, and the Supreme Court has since been clear that generally the only legitimate interest the contribution limits play is to prevent quid pro quo corruption or its appearance. It is nearly impossible to argue that a spouse who gives a contribution over $2,900 to his or her candidate/spouse presents the risk of quid pro quo corruption.
There are several reasons for this. First, spouses have wed their lives together, pledging to support each other unto death. Does a $100,000 contribution really present a risk of corruption when the couple has already decided to join their lives together, in sickness and in health? Second, once elected, most people would agree that the risk of corruption increases because the former candidate-turned-officeholder now holds actual political power. But the Congressional gift rules allow an unlimited transfer of funds from one spouse to the other. See, e.g., House Rule XXV, cl. 5(B)(3)(C). How can the FEC defend a legal regime that so tightly limits financial support when the risk of corruption is speculative, particularly given Congress’s decision to explicitly allow Members of Congress to accept unlimited direct gifts from their spouses? In most cases, we think it cannot.
Still, the FEC continues to prosecute these cases, negotiating substantial penalties or engaging in multi-year investigations. See, e.g., MUR 6860 (Terri Lynn Land for Senate); MUR 6848 (Friends of George Demos); MUR 6417 (Jim Huffman for Senate). Nor is the problem particular to a political party, for both Senator John Kerry (MUR 5421) and Senator Ted Cruz (MUR 7001, et seq.) faced FEC investigations over spousal support for their campaigns.
Over the years, some Commissioners have questioned the wisdom of this approach with respect to familial contributions. See, e.g., MUR 5138 (Ferguson for Congress, et al.), Statement of Reasons, Vice Chair Bradley A. Smith and Commissioner Michael E. Toner at 2; MUR 5724 (Jim Feldkamp for Congress, et al.), Statement of Reasons, Vice Chair Matthew S. Petersen and Commissioner Caroline C. Hunter at 4-6; MUR 6848 (Friends of George Demos, et al.), Statement of Reasons, Vice Chair Matthew S. Petersen and Commissioner Caroline C. Hunter at 4; and MUR 7652 (Nicole Rodden for Congress, Inc.), Statement of Reasons, Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. Trainor III, at 5. Commissioners have raised similar questions about applying these rules to a parent’s contribution to children/candidates. MUR 5321 (Mary Robert, et al.) Statement of Reasons, Chair Bradley A. Smith and Commissioner Michael E. Toner at 4.
With the contribution limits themselves vulnerable to challenge, it seems prudent for the FEC to limit the use of its enforcement powers to facts that most closely conform to the constitutional guidelines of preventing corruption or the appearance of corruption.
The FEC’s Ban on Government Contractor Contributions to Super PACs Cannot Be Squared with Court Decisions
For a number of years, several reform groups have cross-matched Super PAC donor lists against the online database of federal government contractors. Each cycle, there are a number of “hits” to these searches, and the group then files a complaint with the FEC, alleging an illegal contribution by a federal contractor in violation of 52 U.S.C. § 30119(a)(1). The FEC generally pursues all of these cases to a settlement.
There are two risks to this approach. First, the contribution is to a group – a Super PAC – that by its nature is independent of candidates. In addition, a candidate may solicit contributions to such a group only up to the statutory limit of $5,000 and, in most cases, there is no evidence that the candidate was even involved in the solicitation. Thus, contributions to independent Super PACs do not carry the same risk of corruption or its appearance as contributions to candidates.
Second, in most enforcement cases there is no evidence that the contribution was motivated by or had an effect on government contracting. In some cases, the donor has presented uncontroverted evidence that it did not know it was a government contractor, because government contracts made up a small part of the company’s business. See, e.g., MUR 7842 (TonerQuest, Inc.); MUR 7569 (3M Company); MUR 7451 (Ring Power Corporation). In some cases, the “contracts” are general procurement agreements that all vendors must sign to provide products in the normal course of business, such as to a federal health system or branch of the military services. See, e.g., MUR 7887 (Hamilton Company); MUR 7886 (Astellas Pharma US, Inc.); and MUR 7843 (Marathon Petroleum Company LP).
This is not always the case. Sometimes, the FEC has pursued cases where the contributor gave to a Super PAC that focused support on a candidate who could appoint officials to positions that might oversee staff who would oversee contracts. See e.g., MUR 7450 (Ashbritt, Inc.). In these cases, the agency has a much stronger argument that its enforcement action supports the state interest in preventing corruption or the appearance of corruption. But in most cases, there is no identifiable relationship between the contribution and any government contract.
Despite an absence of evidence of quid pro quo corruption and case law raising “substantial doubt” about the constitutionality of the government contractor ban as applied to Super PAC contributions, Wagner v. Fed. Election Comm’n, 901 F. Supp. 2d 101, 107 (D.D.C. 2012), vacated on other grounds, 717 F.3d 1007 (D.C. Cir. 2013), the FEC has tended to process all of these cases the same. In the FEC’s view, a contribution plus a contract equals a violation. By not considering the question of whether enforcement involves facts that advance the government’s interest in preventing corruption or the appearance thereof, and not using Heckler to dispose of cases where the facts do not support this compelling government interest, the prosecution of these cases is a clock, ticking toward the time when a contractor has the resources and will to litigate a case that strikes down the law as applied to Super PAC contributions.
There are a number of recent cases where the FEC has used Heckler to dismiss cases that meet the agency’s standards for dismissal under its Enforcement Priority System because the contribution or the size of the contract was small ($10,000 to $15,000) and made without any evident intent to violate the statute. See, MUR 7888 (Martin Marietta Materials); MUR 7844 (Kirby-Smith Machinery); MUR 7845 (Excel Dryer); MUR 7846 (Amedisys). Three Commissioners also voted to not pursue a matter involving a routine purchase from a tire repair store out of concern for how broadly the agency might be interpreting the word “contract.” MUR 7890 (Service Tire Truck Center), Statement of Reasons, Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. Trainor II. So this is an issue that the Commission is wrestling with, but not, we argue, with sufficient attention to the constitutional questions raised by pursuing cases that involve no underlying anticorruption interest.
The history of the Federal Election Campaign Act of 1971, as amended, has been one of Congress passing sweeping reforms and the courts striking parts of the law. The agency should enforce the law, but should do so strategically with the constitutional concerns raised by the courts in mind. Otherwise, it risks making the statute more closely resemble Swiss cheese than a coherent regulatory regime.
Mr. Lenhard and Mr. Parks have served as counsel to respondents in some of the cases cited above.