WASHINGTON (CN) – The en banc D.C. Circuit ruled Tuesday that it will keep in place an installment plan for nearly $250,000 bequeathed to the Libertarian Party.
When Joseph Shaber died in 2014, he left $235,000 to the Libertarian National Committee, the campaigning arm of the U.S. Libertarian Party which manages and controls the party’s affairs, properties and funds. And while federal elections rules permit individuals to give up to $339,000 per year to such entities, that total comes with certain specifications.
Donors can give $101,700 each to accounts used for presidential-nominating conventions, building expenses and legal proceedings, but the maximum allowed to general-purpose accounts is $33,900.
Shaber’s gift came with no strings attached, but the Libertarian Party says the $33,900 limit on general-expenditure donations forces it to collect the money in installments each year, leaving the rest in an escrow account.
The party argued such limits are a violation of free-speech rights via content discrimination and spreading the payments out under the Federal Election Commission-mandated plan would violate Shaber’s post-mortem wishes when it went before the en banc D.C. Circuit late last year, but the arguments failed to sway the judges.
U.S. Circuit Judge David S. Tatel, a Bill Clinton appointee, delivered the court’s opinion released Tuesday afternoon, noting that Congress created campaign donation limits to avoid political corruption, even in death.
“Although an individual’s death terminates his ability to profit personally from a corrupt quo in exchange for his bequeathed quid, the donor’s surviving friends and family remain all too capable of accepting political favors that their deceased benefactor may have pre-arranged for their benefit,” Tatel wrote. “Voters lack the means to examine the intentions behind suspiciously sizable contributions, a problem that becomes especially acute in the case of a deceased donor who, of course, is forever unavailable to answer inquiries.”
Tatel also pushed back on the content-based claim, saying the Libertarian National Committee confused receiving donations with actually spending those donations, and therein lies a “clear distinction” in how the government regulates speech.
“The LNC’s speech occurs when it spends Doe’s money on political expression,” the judge wrote. “True, the LNC may not spend Doe’s additional dollar on a billboard. But it may spend as many dollars from as many non-Does as it wants on billboards, so long as it spends no more than $33,400 from any single donor. The LNC’s speech is thus subject to no restriction, content-based or otherwise.”
But in a separate opinion, U.S. Circuit Judge Gregory G. Katsas, a Donald Trump appointee, said contribution limits are unconstitutional as applied to uncoordinated bequests.
“Armed with extensive disclosure requirements and enforcement powers, the FEC routinely determines whether disputed expenditures were coordinated or independent. The FEC offers no reason why it cannot make the same determination as to bequests,” Katsas wrote.
He added, “Because coordinated and uncoordinated bequests can be manageably distinguished, and because uncoordinated bequests are not even alleged to present any corruption risk, the contribution limits are unconstitutional at least as applied to them.”
Katas was joined in his partial dissent by U.S. Circuit Judge Karen L. Henderson, a George W. Bush appointee.
Tatel was joined in the majority by U.S. Circuit Judges Sri Srinivasan, Patricia Millett, Cornelia Pillard, Robert L. Wilkins and Merrick Garland.
U.S. Circuit Judge Thomas B. Griffith wrote an additional opinion concurring in part and dissenting in part. He took issue with the fact that the donation rule “restricts general contributions while declining to restrict segregated contributions.”
“The LNC and similar minor parties do not benefit much from the higher limit for segregated-account contributions. Instead, they seek contributions that can be used for other purposes, and those contributions are limited to $33,400,” he wrote.
Griffith continued, “In this way, the scheme’s exceptions loosen restrictions on those contributions that are useful to major parties but not to minor parties… it raises further doubts that the scheme is tailored to serve anticorruption interests rather than an impermissible interest, such as disadvantaging minor parties.”
An FEC spokesperson said the agency does not comment on pending litigation.
A request for comment from Alan Gura, the Washington, D.C.-based lawyer who represented the LNC at oral arguments, was not immediately returned Tuesday afternoon.
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