The FEC Fears the Dead Will Corrupt Politics (Through the Libertarian Party)

Could the dead rise up to ruin our political system?

Raymond Groves Burrington, a Tennessee day trader, died in 2007. In his will, he left 25 percent of his estate to the Libertarian Party (LP). After paying the estate's debts and expenses, that 25 percent came out to $217,734, a princely sum for the cash-strapped LP. According to the Libertarian National Committee (LNC), Burrington's gift would have covered the party's debts and ballot access costs for the 2008 election cycle. Unfortunately, the Federal Election Commission (FEC) told the LNC it could not accept the Burrington estate's bequest—at least not all at once.

In a 1983 opinion, the FEC decided that contributions from a deceased person's estate should be treated the same as if it came from a living person. And federal law caps the amount of money a living person can give a national political party in a given year (presently $32,400). Therefore, the Burrington estate had to place the $217,734 in escrow and make annual distributions to the LP up to that year's contribution limit. The final payment is expected this year, seven years after Burrington's death.

Three years ago, the LNC sued the FEC in federal court, alleging the restriction on Burrington's gift violated the First Amendment. The LNC wanted "immediate control of the balance of the Burrington Estate funds" and a declaration that future bequests to the LP—or any other political party—would not be subject to FEC limits. The LNC also invoked a special section of federal campaign-finance law that requires certification of "non-frivolous" constitutional questions directly to the D.C. Circuit Court of Appeals.

Last year, U.S. District Judge Robert L. Wilkins agreed to certify only a narrower question: "Does imposing annual contribution limits against the bequest of Raymond Groves Burrington violate the First Amendment rights of the Libertarian National Committee?" Wilkins said there could be no question as to whether the FEC violated Burrington's First Amendment rights, as he was dead. Nor, Wilkins said, could the LNC use this case to mount a broader assault on federal contribution limits. But he conceded the D.C. Circuit could find the LNC has a limited "First Amendment right to receive campaign contributions" as applied to the particular facts of the Burrington donation.

Preventing Non-Existent Corruption

On February 7 of this year, the D.C. Circuit summarily affirmed Judge Wilkins' decision not to certify the LNC's broader constitutional challenge. The court has yet to rule on the narrower question, but in a February 3 filing, the FEC suggested the case is moot, because the LNC will receive its final, restricted payment from the Burrington estate this year. The FEC said there was no longer any need for the court to rule on this issue, because "there is no reasonable expectation that the Contribution Limit will restrict a bequest to the LNC again." The FEC snarked that the LP "has never had a federal officeholder," never received a bequest anywhere near the size of Burrington's, and that "it was highly unlikely" anyone would make such a gift in the future given the party's minor status

And yet, the FEC insists the contribution limit is necessary to prevent the "corruption" of a politically irrelevant group like the LP. This makes no sense. After all, how could a dead man corrupt a party? The FEC offered a number of hypothetical scenarios where corruption might occur—such as granting a potential donor access to party leaders in exchange for a promise to leave a gift through his estate—but that had nothing to do with this case. By all accounts, the LNC had no knowledge of Burrington's bequest prior to his death. Burrington was not a party activist; records showed he previously made only a single contribution of $25 in 1998. Burrington's attorney told USA Today last year that he had "no idea why Burrington donated to the party," and even Judge Wilkins acknowledged the LP offered nothing in exchange for the gift "apart from perhaps a simple expression of gratitude."

Judge Wilkins suggested that even if there were "valid anti-corruption concerns," the FEC could deal with it "through its disclosure and rulemaking authority." But the FEC maintains the eternal creed of the prohibitionist: To prevent some people from abusing a right, it is necessary to revoke everyone's rights. Even if that means trampling upon a minor party whose growth and success might serve as a more effective check upon major-party corruption than the FEC's unconstitutional mandates.

Of course, that may be the point. As the FEC's own filings tacitly acknowledge, the contribution limit hurts third parties like the LP far more than the Democrats or Republicans. Unrestricted access to the Burrington gift, for instance, could have made a significant difference to the party in 2008. Larger parties have the resources to overcome the inconvenience of individual contribution limits; smaller parties do not.

Exporting Campaign Finance Hysteria

Coincidentally, the issue raised by the Burrington lawsuit has become the subject of political debate north of the border. In Canada, the Conservative government recently introduced legislation to crack down on estate bequests to political parties. Historically, Canada has taken the opposite approach of the U.S.; donations from estates are not subject to the limits imposed on living donors. The Conservatives want to end that practice and impose an FEC-style rule.

Why? As the CBC's Kady O'Malley reported, "Judging from past election flings, the move to crack down on the potential for undue political influence by the recently deceased is likely to be felt most keenly by the [opposition] New Democrats, who have collected nearly $1 million in bequests since 2007, including $50,000 from the estate of the party's late leader, Jack Layton, in 2012." Clearly, money corrupts politics when it disproportionately goes to the party that doesn't control the government.

O'Malley expressed skepticism over the proposed change, noting the Conservatives failed to address estate contributions in a prior campaign finance reform law, and she wondered, "what concerns have subsequently arisen that would justify a crackdown on contributions from the dearly departed." Maybe she should talk to the FEC. They'll be able to outline all sorts of "concerns"; just don't ask them for any real-world examples of corruption.