Bench Memos

Law & the Courts

Death, Taxes, and Campaign-Finance Restrictions

In an en banc ruling yesterday in Libertarian National Committee v. FEC, the D.C. Circuit rejected First Amendment challenges to the Federal Election Commission’s application of political-contribution limits to a bequest of $235,000 made by a deceased donor, Joseph Shaber, in his will. The decision was by a vote of seven to three, along ideological lines, though the dissenters differed on their objections to the majority’s ruling. (The case was argued before Neomi Rao joined the court, and she did not take part in the decision.)

In his dissent, Judge Gregory Katsas addresses how the challenged contribution limits apply to “three nested categories” of contributions (from broadest to narrowest): bequests generally, “uncoordinated” bequests, and Shaber’s request. On an admittedly very quick review, I’m inclined to think that the limits fail the Supreme Court’s First Amendment tests at least as to the narrowest of these categories.

As Katsas explains, the only legitimate government interest served by the limits on political contributions is the prevention of quid pro quo corruption and of the appearance of such corruption. But Shaber never even informed the Libertarian National Committee of his intended bequest. He attached no conditions or requests to his bequest. He received nothing in exchange for his bequest. And, apart from modest gifts to the LNC over a period of 24 years (averaging less than $150 per year), he had no other relationship with the LNC. So how could anyone be concerned that Shaber’s bequest might involve quid pro quo corruption?

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