Federal election laws limit the amount of money that an individual may give to a national party committee each year. The aim is to prevent the corruption and appearance that has been found to arise from parties’ unchecked solicitations of wealthy donors and their receipt of large contributions. These contribution limits have long been upheld because they do not prevent donors from spending money on political activity directly, rather only marginally restricts their association with the party and their expression “through” the proxy of a political party.  The Federal Election Commission (FEC) applies these limits to bequests from individual estates, but requires parties to put bequests that exceed the limits in an escrow account, and to make annual withdrawals in amounts that comply with the yearly limits.

In the last hours before the December 2014 deadline, Congress passed an enormous federal spending bill, the “Cromnibus,” to avoid a government shutdown. Tucked into the spending package was an amendment to the federal contribution limits, which allows individuals to make an additional contribution to a political party of up to three times the pre-existing limits, so long as those contributions are made to “segregated accounts.” These segregated accounts can then be used by the parties to pay for expenses related to presidential nominating conventions, legal activity, and party headquarters buildings, but not for other purposes. 

The LNC brings two separate but interrelated challenges to limits on contributions to political parties. First, the LNC argues that they should be able to accept the full amount of a particular bequest immediately because no quid pro quoarrangement between the party and a decedent can arise, and the nature of the bequest does not give rise the appearance of such an arrangement. Second, the LNC argues that by increasing the contribution limits only for certain designated expenses, Congress has created an unconstitutional “content based” restriction on how parties may accept and spend contributions.  

WHAT IS AT STAKE

This case is yet another attempt to undermine or eliminate contribution limits to political parties. It advances the dangerous proposition that contribution limits may only apply to a specific contribution if the government can show that it has caused corruption or is likely to do so in the future. The LNC’s characterizes its request to exempt a bequest from the annual limits as a one-time carve-out for a gift where the donor has no any interest in political favors. In reality, however, the logic underlying this argument would require the FEC and the courts to “prove” the corruptive effects of every individual political contribution. Not only would this be impossible to administer, it would undermine the prophylactic nature of the entire system of federal contribution limits. 

The case also seeks to sweep away decades of precedent which has upheld contribution limits precisely because they limit only the amount an individual can donate to a particular political party or candidate, and not the total amount of political activity in which either the donor or the recipient may engage. Finally, it attempts to create a one-way ratchet on contribution limits, and ignores the long-standing deference courts have given to Congress to determine what monetary limit serves the dual aims of preventing corruption and ensuring parties have the resources necessary to engage in political advocacy. 

The Campaign Legal Center disagrees with many of the assumptions which underlie both the FEC’s decision to allow excess contributions made in the form of a bequest, and Congress’s decision to increase the contribution limits for segregated accounts. Those disagreements are rooted in policy disputes, however, not constitutional infirmities. Our friend-of-the-court brief, filed with Democracy 21, supports the constitutionality of the overall federal contribution limit system, and points out the dangerous implications for campaign finance jurisprudence should the Court rule in favor of the LNC. 

Background 

In 2017, Georgia Governor Nathan Deal signed House Bill 268 into law, which codified a voter registration database “exact match” protocol. HB 268 was introduced shortly after the settlement of a lawsuit filed in 2016 by CLC and others, which challenged a similar voter registration database “exact match” requirement that had been implemented by Georgia Secretary of State Kemp.   

The “exact match” protocol requires county registrars in Georgia to match information entered from the voter registration forms into a statewide database against records on file with the Georgia Department of Drivers Services (DDS) or Social Security Administration (SSA). If the information doesn’t match exactly with the DDS or SSA records, the voter’s registration is placed into a “pending” status limbo. If the registrant doesn’t “cure” the problem by showing other identification within 26 months, the registration is cancelled.  

The result is the flagging for potential removal of thousands of registrations for innocuous mistakes such as misread handwriting, incorrect transposition of driver’s license digits, or the omission or addition of a hyphen in a registrant’s name. These errors are often not the registrants’ fault or related to their eligibility. Nonetheless, they place the burden on registrants to avoid being disenfranchised. To make matters worse, after a mismatch is flagged, Secretary Kemp has not required county registrars to check whether information was accurately entered into the system or engage in any other quality review.  

Finally, the system also relies on outdated citizenship data from the DDS, which does not automatically update when an individual becomes a naturalized citizen. This routinely results in registrants being erroneously flagged as non-citizens—even when registrants present proof of citizenship with their initial registration forms. It appears that Secretary Kemp has no protocol for ensuring that voters who provide proof of citizenship with their registration are not still flagged and asked to provide the same information, again, leading to confusion and intimidation. 

Impact on Minority Voters 

Of the more than 34,000 voter registrations cancelled as a result of a similar “exact match” system from July 2013 to July 2015, approximately 76.3 percent of those registrations were submitted by minority registrants. Since the enactment of HB 268, the “exact match process” has continued to have a discriminatory impact on minority voter registrants and produce high and erroneous no-match rates. Based on data produced by the Georgia Secretary of State’s office, of the approximately 51,111 voter registrations that were “pending” on July 4, 2018 as a result of a no-match, approximately 80.15 percent were submitted by Black, Latino, and Asian-American registrants.  

“Exact Match” Process Violates Voting Rights Protections 

If left in place, this policy has the potential to disenfranchise tens of thousands of voters throughout Georgia and punish voters if they choose not to vote within 26 months of their registration. The policy adds nothing to the ordinary practice across the country of requiring first-time voters who do not “exactly match” to show some form of identification—e.g. a utility bill, lease, or photo ID—when they cast a ballot for the first time.  

The Campaign Legal Center has joined with counsel from the Lawyers’ Committee for Civil Rights Under Law, Hughes Hubbard & Reed LLP, the Law Office of Bryan L. Sells, LLC, and Asian Americans Advancing Justice – Atlanta to represent a coalition of civil rights groups that includes Georgia Coalition for the Peoples’ Agenda, Asian Americans Advancing Justice—Atlanta, Georgia State Conference of the NAACP, New Georgia Project, Georgia Association of Latino Elected Officials, and ProGeorgia State Table in the lawsuit challenging this disenfranchisement.  

In the lawsuit, Georgia Coalition for the Peoples’ Agenda v. Kemp, plaintiffs allege that Georgia’s “exact match” protocol violates Section 2 of the Voting Rights Act, Section 8 of the National Voter Registration Act, and the First and Fourteenth Amendments of the U.S. Constitution. The lawsuit calls on the federal district court in Georgia to block the state from enforcing the failed protocol and register applicants whose applications were placed in “pending” status as a result of a failure to meet the “exact match” standard.