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.

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Photo of Robert Lenhard Robert Lenhard

Robert Lenhard has helped guide decision makers in corporations, trade associations, and advocacy groups on complying with the laws regulating political activity for over 20 years. As a senior member of the firm’s Election and Political Law Practice Group, he provides compliance advice…

Robert Lenhard has helped guide decision makers in corporations, trade associations, and advocacy groups on complying with the laws regulating political activity for over 20 years. As a senior member of the firm’s Election and Political Law Practice Group, he provides compliance advice relating to federal and state campaign finance, lobbying, pay-to-play, and government ethics laws. As an advocate, counselor, and regulator, Mr. Lenhard brings a depth of experience on matters that involve legal as well as political risk.

Bob led Covington’s representation of the Biden for President campaign, the Super PAC supporting President Obama’s re-election, as well as several prominent professional sports leagues, pharmaceutical manufacturers, technology companies, advocacy groups, and trade associations.

Prior to joining the firm in 2008, Mr. Lenhard served as Chairman of the Federal Election Commission (FEC) in 2007 and Vice Chairman of the agency in 2006, during which time the agency handled over 10 major rulemakings, had among its most productive years in enforcement and audit, and adopted several reforms to the enforcement process. Mr. Lenhard also led the Presidential Transition Team that reviewed the FEC for the incoming Obama administration in 2008-2009.

Mr. Lenhard is frequently quoted in the press, has lectured at major law schools, and Before his service to the FEC, Mr. Lenhard provided legal advice to labor organizations active in the political process at the federal, state, and local levels. Mr. Lenhard also was involved in litigation in the Florida trial and appellate courts over the counting of absentee ballots in Seminole County, Florida in 2000.

Robert Lenhard is a member of the firm’s Election and Political Law Practice Group and advises corporations, trade associations, not-for-profit organizations, and high-net-worth individuals on compliance with federal and state campaign finance, lobbying, and government ethics laws.

Mr. Lenhard routinely assists clients in establishing and operating federal and state PACs, compliance programs associated with campaign finance and pay-to-play laws; advises advocacy groups and their donors; conducts compliance trainings and audits of federal and state lobbying and political programs; and counsels clients on compliance with congressional gift and travel rules. According to Chambers, sources report: “He is strategic and always sees the big picture. He is a great person who provides excellent non-legal counsel as well.”

Photo of Zachary G. Parks Zachary G. Parks

Zachary Parks advises corporations, trade associations, campaigns, and high-net worth individuals on their most important and challenging political law problems.

Chambers USA describes Zachary as “highly regarded by his clients in the political law arena,” noting that clients praised him as their “go-to outside…

Zachary Parks advises corporations, trade associations, campaigns, and high-net worth individuals on their most important and challenging political law problems.

Chambers USA describes Zachary as “highly regarded by his clients in the political law arena,” noting that clients praised him as their “go-to outside attorney for election law, campaign finance, pay-to-play and PAC issues.” Zachary is also a leading lawyer in the emerging corporate political disclosure field, regularly advising corporations on these issues.

Zachary’s expertise includes the Federal Election Campaign Act, the Lobbying Disclosure Act, the Ethics in Government Act, the Foreign Agents Registration Act, and the Securities and Exchange Commission’s pay-to-play rules. He has also helped clients comply with the election and political laws of all 50 states. Zachary also frequently leads political law due diligence for investment firms and corporations during mergers and acquisitions.

He routinely advises corporations and corporate executives on instituting political law compliance programs and conducts compliance training for senior corporate executives and lobbyists. He also has extensive experience conducting corporate internal investigations concerning campaign finance and lobbying law compliance and has defended his political law clients in investigations by the Federal Election Commission, the U.S. Department of Justice, Congressional committees, and in litigation.

Zachary is also the founder and chair of the J. Reuben Clark Law Society’s Political and Election Law Section.

Zachary also has extensive complex litigation experience, having litigated major environmental claims, class actions, and multi-district proceedings for financial institutions, corporations, and public entities.

From 2005 to 2006, Zachary was a law clerk for Judge Thomas B. Griffith on the United States Court of Appeals for the District of Columbia.