Federal campaign finance law generally limits individual donations to political candidates to $2,700 for each election the candidate runs in. Practically, this means wealthy supporters can give House and Senate candidates, at most, $5,400 each campaign cycle. But due to her state’s unusual system and a not-very-analogous Federal Election Commission precedent, Rep. Mia Love (R-UT) is seeking to boost that to $8,100 her 2018 re-election — citing a primary in which she did not run.
Thanks to the Republican Party’s assault on federal campaign law enforcement, Love — who calls herself a “tireless advocate of the need for personal accountability” on her official campaign website — will also likely get away with it. While her campaign admitted this week it illegally accepted contributions in excess of the legal limit and did not return them within the 60 day window, it says it plans to effectively keep most of that money.
Here’s what happened: Utah is one of a small number of states that has the possibility of more than one nomination process. If a candidate garners at least 60 percent of the vote at a party nominating convention, they advance to the general election. If they do not, they must run in a primary. Federal election law treats each of those as a separate election with separate contribution limits.
In 2016, for instance, Sen. Mike Lee (R-UT) raised and spent money for a primary in which he never had to run. Because he had no way of knowing that he would win the nomination at the convention, the Federal Election Commission agreed to let him keep some of the money that was raised but not spent. The determination was made, without much explanation, over the recommendation of the career staff at the agency.
Mia Love’s campaign, by contrast, decided to take advantage of that loophole to raise money for both the convention and primary — even though there was little indication that she would face any serious challenge. Even after it became clear she would not face a primary — and even after she won the nomination at the convention — she continued to raise money for her non-existent primary race. When the Federal Election Commission’s career staff questioned it, Love’s lawyers announced that the would simply keep the money raised before the convention and would refund or re-classify the money raised afterwards.
Brendan Fischer, director of the Federal Reform Program at the non-partisan Campaign Legal Center, told ThinkProgress that he does not think this comports with campaign finance law. But, the agency responsible for enforcing these laws appears to be asleep at the switch.
“I think that if there were a functioning FEC, they’d realize they’d opened a big loophole with the Lee matter and say ‘Once a candidate knows they’re not gonna run in the election, they can no longer keep money raised for that non-existent election,'” Fischer said. However, given that two seats are currently vacant on the six-member Commission and and action thus requires unanimous agreement by the two Democrats and two Republicans, “It seems pretty unlikely the FEC’s gonna do anything about this,” he added.
Paul Seamus Ryan, vice president of policy and litigation at Common Cause, echoed this assessment. “I think Mia Love and her team [are] probably banking on the dysfunction of the Federal Election Commission in pushing the boundaries of the law and that they are confident they will get away with this precisely because it’s such a broken agency,” he told ThinkProgress.
Ryan noted that even if Love is correct in her assessment that she can raise extra money under the Lee loophole, she violated the law requiring her to address the post-convention funds within 60 days of the convention.
“That strikes me as a clear violation — albeit a more minor violation than the violations I believe occur in keeping the primary money in excess of what was actually spent,” he said. “It’s a violation, there should be enforcement, [even if it’s] less serious than an effective 50 percent increase in the contribution limit that results from just keeping this primary money.”
Any enforcement, he said, is unlikely. “I’m not a betting man, but if I were, I wouldn’t bet on any enforcement from this FEC, even for clear violations,” he added.
Ryan and Fischer both agree — assuming Love gets away with this — that, moving forward, other candidates will likely use her approach in Utah and across the country.
“We’ve seen in other areas of federal campaign finance law examples in which one candidate, committee, campaign gets away with some clear violation, the FEC doesn’t do anything, and everyone starts to do it,” Ryan said. “I wouldn’t be surprised if we saw that here.”