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Dead Men Get No Political Favors

Summary:
The Libertarian National Committee (LNC) is a small political party that received a surprise gift. When Joseph Shaber passed away, he left the LNC about 5,000. The LNC didn't even know about the bequest until it was received. Prior to the gift, Mr. Shaber had been a small donor to the party, giving 46 small donations totaling just over ,300 during his life. The bequest created a problem. By statute, the most any person can contribute to any political party in any given year is ,000. The Federal Election Committee (FEC) applies the same contribution limits to the dead as to the living, so Shaber's gift was about seven times the contribution limit. For large bequests, the FEC requires that the money to be put in trust and parceled out each year as if the deceased had gone on living.

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The Libertarian National Committee (LNC) is a small political party that received a surprise gift. When Joseph Shaber passed away, he left the LNC about $235,000. The LNC didn't even know about the bequest until it was received. Prior to the gift, Mr. Shaber had been a small donor to the party, giving 46 small donations totaling just over $3,300 during his life.

The bequest created a problem. By statute, the most any person can contribute to any political party in any given year is $35,000. The Federal Election Committee (FEC) applies the same contribution limits to the dead as to the living, so Shaber's gift was about seven times the contribution limit. For large bequests, the FEC requires that the money to be put in trust and parceled out each year as if the deceased had gone on living.

But that ignores a more fundamental question: why should bequests to political parties be limited? Contributions to political parties by living people have been limited since the 1970s. In the foundational case of Buckley v. Valeo, the Supreme Court upheld contribution limits on the theory that they help prevent quid pro quo corruption—the purchasing of political favors with donations. The Court acknowledged that contribution limits are prophylactic. Most contributions are not made to elicit political favors, but all contributions are limited in order to protect against the possibility. It's hard to imagine, however, a dead person receiving political favors, much less the need for a prophylactic rule to guard against the possibility.

The LNC sued, arguing that the FEC's restrictions on bequests are irrational and violate the party's First Amendment rights. Now on petition to the Supreme Court, Cato has filed a brief in support. We argue that bequests have significant expressive content. If a deceased father gives twice as much to his daughter as his son, the children will definitely get the message conveyed by their father. The expressiveness of a bequest is clearly tied to the amount. Moreover, there is minimal chance of a quid pro quo agreement with the dead. It's feasible, perhaps, that the heirs of the deceased could monitor politicians for delivering political favors, but very unlikely.

So far this year, political parties have raised almost $2 billion. Over the last few decades, a scant $3.7 million has been given to political groups via bequest. Bequests are rare enough, and corruption is unlikely enough, that a prophylactic rule is unnecessary. This case shows what happens when an anomaly—bequests are a rounding error in the scope of campaign finance law—is treated as an ordinary yearly contribution. The Supreme Court should grant review and let the dead rest in peace with the knowledge that their last testament will be carried out.

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