So Wyoming Republicans moved their presidential primary to January 5, 2008.
New Hampshire insists that it will be the first primary, and Iowa demands that they be the first caucus, ahead of Iowa. So once again, we’re looking at the possibility of a primary or caucus in 2007. And that has a bizarre, unforeseen ramification that under FEC rules, donors could give an additional $2,300 to a candidate to compete in the 2007 election, which would be seen as a separate election for donation purposes.
However, the language of this provision, set forth in Section 2 USC 441a(a)(6) of the Federal Election Campaign Act (FECA), reads as follows:
(6) The limitations on contributions to a candidate imposed by paragraphs (1) and (2) of this subsection shall apply separately with respect to each election, except that all elections held in any calendar year for the office of President of the United States (except a general election for such office) shall be considered to be one election. (emphasis added.)
’’Paragraphs (1) and (2)’'referred to in this provision set forth the $2,300 limit on a contribution from an individual and the $5,000 limit on a contribution from a PAC to a candidate per election.
The FEC regulation issued to implement this statutory provision is found in 11 CFR 110.1(j)(1) and simply repeats the statutory provision:
(j) Application of limitations to elections. (1) The limitations on contributions of this section shall apply separately with respect to each election as defined in 11 CFR 100.2, except that all elections held in a calendar year for the office of President of the United States (except a general election for that office) shall be considered to be one election. (emphasis added)
The language of this statutory provision literally means that the $2,300 individual limit and the $5,000 PAC limit per candidate that applies to all presidential primaries and caucuses in a calendar year would not apply to a caucus or primary if it were held in 2007.
If you’re a candidate with a small but wealthy donor base who have already maxed out their contributions, you’re pulling hard for a 2007 contest, because you could instantly double your donations (or come close to it) by hitting up everybody who has already given the max.
The other irony? Right now, several states are holding their Republican and Democratic primaries on separate days. So theoretically, if, say Wyoming Republicans but not Wyoming Democrats moved their primary to December 30, the loophole would apply to one party and not the other.
I was discussing this with a Republican campaign strategist, and he said the guy who might benefit the most from this quirk would be, ironically, Mr. Campaign Finance Reform, John McCain. (This was not a McCain guy.)