The FEC will be defending the “structure” of the contribution limits this week in the US Court of Appeals for the District of Columbia. The case, Holmes v. Federal Election Commission, tests the constitutionality of the "per election" limits as applied to a donor’s choice to participate only in the one--the general--election. If a donor skips a primary, and wishes only to contribute in the general, she now cannot give the full amount allowed for the election cycle cycle, $5400, but only half of that: $2700, the "per election" limit for the general.  The Holmes plaintiffs’ point is that this bifurcation of the limits serves no legitimate anti-corruption purpose. Donors do not potentially corrupt candidates in the primary, or the general, or a run-off: the corruption, if it occurs, is the result of the amounts given through the date that the candidate is elected to office, after which the new officeholder is in a position to return the favor. And the limit Congress settled on to serve this anticorruption interest is the combined allowance for the cycle, $5400, a point that the Supreme Court stressed in McCutcheon.

The problem presented by the bifurcation of the limits is worsened by the messiness of its application. Incumbents and other largely unopposed candidates do well under this system, collecting money for primaries they don’t have to compete in and transferring the money to their general election accounts. Both the candidates in this position and their donors are aware that the money being given to the “primary” is really for the “general.” And a candidate can collect a contribution designated for the general election before the primary election is decided, provided that the candidate escrows the money and does not spend it until after the date of the primary. In this case, the candidate has, in fact, accepted a full cycle contribution of $5400 prior to the general election. It may be subject to a restriction on when it is spent, but the donor looking to make an impression, with a full cycle’s worth of contributions before the primary, will have done so.  Or, knowing that a primary candidate is closing in on victory, a donor can give the full primary election amount the day before the primary, and the full general election amount the day after, with confidence that he or she has given $5400 for the general election.

And add to all this that by FEC rule, an opposed candidate who, by operation of state law is not even on the ballot may still raise a "primary" or "general" election contribution in the full amount. The regulation reads:

A primary or general election which is not held because a candidate is unopposed or received a majority of votes in a previous election is a separate election for the purposes of the limitations on contributions of this section. The date on which the election would have been held shall be considered to be the date of the election.

11 C.F.R. 110.1(j)(3).

Former FEC Commissioner Ann Ravel left a lengthy note as she left town to explain how bad things had gotten at the FEC. Her agency would not help drain the swamp; a bloc of Commissioners had scuttled the agency’s mission to enforce campaign finance disclosure and limits. Republicans promptly disagreed. So the Democrats and Republicans, at odds over enforcement policy, also disagree about the extent and seriousness of their disagreements.

With the agency down to 5, and most of the Commissioners' terms having expired, the question is what happens post-Ravel. There has been talk that the Trump Administration may make a full round of nominations and look to reshape the agency. Speculations have included the possibility that the Administration would end the long-standing deference to the other party in the nomination of half of the Commission and perhaps stack the deck, maybe by putting Independents in place of the Democrats. The law limits parties to half the seats; it does not guarantee a party any of the seats.

This heavy-handed maneuver seems unlikely, especially if Senator McConnell has anything to say about it, which he does. He has seemed committed to the practice of giving each party a check on the other. And it is hardly clear why, if the FEC poses little threat to Republicans and their constituencies on the issues they most care about, McConnell and his colleagues would want to open up a fight on this distant front when other battles raging around them have a greater call on their time and attention.

The more interesting question is what role the FEC--campaign finance--plays in the swamp-draining Trump platform. The Ravel farewell report declares the “unlikelihood” that the FEC will help with the draining activity. The Administration might be inclined to agree.

The FEC got back into the news when Commissioner Weintraub issued a statement, posted to the FEC website and distributed via Twitter, that President Trump should produce some evidence to support his claim of voter fraud. An organization that calls itself Cause of Action filed a complaint with the FEC Inspector General, demanding an inquiry into whether the Commissioner’s expression of her views involved an impermissible diversion of government resources to a private political pursuit. Commissioner Weintraub replied that she would “not be silenced.”

One can only hope that in this demoralized agency, the IG finds better things to do. Just weeks ago, the President of the United States used Twitter to visit hell on a department store chain that discontinued his daughter's line of clothing. An FEC Commissioner’s use of a statement and a few hundred characters of twitter commentary to criticize the President’s voter fraud claims hardly seems the most compelling reason for concern about holding some line between the official and the personal.

Are Weintraub’s comments directly and squarely within the jurisdiction of the Commission, such that she can take some action in response to the President's failure to produce the requested evidence? No, but then again she rightly says that as a 13 year Commissioner, she should be free to take notice of any claims that bear on the integrity of elections. And she has tried, probably unnecessarily, to bolster her case by pointing out that anyone paying for busloads to come into New Hampshire to vote illegally may have committed a campaign finance violation.

FEC Commissioner Ravel came to town with every intention to make change and left in a state of disillusionment. She aspired to build fences and ran into a wall: The Republicans had no interest in cooperating in a progressive reform program, not even bringing “dark money” into the light. The Commissioner then took her case public, before the sympathetic audiences in the media, but this was a dead end. Republican Commissioners are not moved by op-eds in the New York Times. By the time of her resignation yesterday, Commissioner Ravel had made her name by stressing the pointlessness of expecting anything from her agency. She may have made little headway in advancing the cause of transparency in campaign finance, but she was very clear about her own views.

Her letter of resignation is a parting expression of her commitment to strengthened enforcement of campaign finance laws. It is also a last testament to the futility of her quest. She refers to various statements the President has made about the broken campaign finance system and urges him to prioritize reform among his domestic initiatives. Of course, Mitch McConnell runs the Senate and there is no chance of his agreement to the program she advocates of ending “dark money,” reversing Citizens United, public finance and a reinvigorated FEC.

The president to which she made this last appeal may or may not have meant what he said about campaign finance. He was a billionaire candidate who could spend freely: his “money in politics” was not restricted. But he did not win by swamping his foes with superior resources. Candidates with plenty of campaign money, like Jeb Bush, failed early. On the subject of election law, this president seems far more motivated by his belief in “voter fraud.”

To put the point in mildest terms, Ellen Weintraub and Don McGahn do not get along. When they served together on the Federal Election Commission, their mutual hostility was well enough known, and their time apart since Mr. McGahn left the agency does not appear to have eased the tension – – certainly not on Commissioner Weintraub's side, and probably not on Mr. McGahn's. Now Ms. Weintraub has published an op-ed in The Washington Post, arguing on the basis of her experience with Don McGahn that he is not fit to be the next White House Counsel.

How McGahn will perform in his current job might be judged as Commissioner Weintraub suggests, by putting the weight she does on a particular reading of his record at the FEC. Or, on a different view, a distinction could be drawn between Mr. McGahn's past and future roles, and a different standard of evaluation could be adopted for the work now ahead of him. In choosing the first of these alternatives, the Commissioner may be incorrectly framing the question of McGahn's suitability as White House Counsel and directing attention away from what is more relevant in assessing the role and performance of that Counsel in the incoming Administration.