The Federal Election Commission could not figure out a way around DOMA and authorize by Advisory Opinion separate contributions by same sex couples, married or in civil unions, from shared assets. This was not for want of credible arguments, including ones advanced by my colleagues and me on behalf of the Democratic national party committees. But the Commissioners confronted what they took to be an impassable obstacle in the form of DOMA’s statutory command.

One question fairly asked is how the FEC understands its authority to take constitutional issues into account in interpreting the law. The Commissioners did not believe that it was their legitimate function to weigh in on one side or the other of a case, which is not a campaign finance case, pending before the Supreme Court, or to take into account what they imagine the result will be. But what might the FEC have done with fresh, relevant constitutional adjudication in the very field of campaign finance? The agency would be expected to pay close attention to that.

In Davis v. Federal Election Commission (554 U.S. 724 (2008)), the Court considered Congress’ choice to make higher contribution limits available to candidates facing self-financed (“millionaire”) opponents. It invalidated this measure as an infringement of the millionaire’s free speech rights, declaring that it would not countenance manipulations of the contribution limits that were unrelated to the function of controlling the threat or appearance of corruption. And the Court noted that the discriminatory limits at issue in Davis were not only unrelated to that function but inconsistent with it. Congress raised limits for privately-funded candidates, opening up more access to interested money, while disadvantaging candidates who choose to rely on their own personal resources. Discrimination in the setting of limits could be justified only by a clear relationship to this anti-corruption rationale—and only this rationale.

The FEC could have applied this reasoning to the question of how the contribution limits would be applied to same-sex couples. If and until the Court finally decides otherwise, DOMA may govern other federal statutes, but under established campaign finance jurisprudence, it cannot support a discriminatory regime of political contribution limits. Providing two contribution limits to heterosexual couples contributing from shared resources while allowing only one such limit to same-sex spouses or partners in civil unions bears no conceivable relationship to what the Court has insisted is the sole governmental interest behind campaign finance regulation—preventing corruption or its appearance. (Id. at 41, citing Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 428 (THOMAS, J., dissenting)). ‘[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances’ (quoting Federal Election Comm’n v. National Conservative Political Action Committee, 470 U.S. 480, 496–497 (l985)). Do dual limits risk corruption or its appearance if the contributors are a same-sex couple, but not if they are heterosexual? Are the risks of circumvention of the limits different in the two cases? Clearly not.

The Commission’s reliance on DOMA tightly ties up this point: that law has nothing to do with corruption through political spending of the electoral process. To rest on DOMA in sustaining discriminatory limits suggests wrongly, and very much at odds with Davis, that Congress could construct contribution limits to advance social policies entirely outside the campaign finance law’s permissible regulatory objectives.

On a number of occasions, Commissioners have pronounced themselves bound by the evolving jurisprudence in the field of campaign finance. In this instance, they seem to have disregarded it. Here was an opportunity it is surprising that they passed up and that does not come up all that often: to approve by unanimous vote a decision that would have served goals so often in tension with each other—political equality and de-regulation—and that would have done so under the guidance of clear, recent Supreme Court authority.