But gives no support to limitations on "soft money"
Supreme Court Upholds Federal Limits
On Party-Coordinated Spending

By James Bopp, Jr., NRLC General Counsel

In a 5-4 decision the United States Supreme Court has upheld limitations on the amount of money a political party can spend in coordination with its congressional candidates. Although trumpeted in a number of circles as buttressing the case for McCain-Feingold-like campaign finance "reform," in fact the June 25 decision essentially upheld the status quo.

The case did not address either of the two most contentious parts of such so-called reform: limitations on "soft money" and draconian restrictions on issue advocacy ads run by grassroots organizations such as National Right to Life.

In Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado Republican), Justice David Souter, joined by Justices John Paul Stevens, Sandra Day O'Connor, Stephen Breyer, and Ruth Bader Ginsburg, addressed so-called " hard money" - - funds raised by political parties that are spent explicitly in support of candidates.

Souter traced previous High Court decisions in this area and concluded that the Court has struck down restrictions on independent expenditures (money spent on behalf of a candidate but not given to him or her) but has upheld limits on campaign contributions (hard money), money given directly to candidates.

Souter argued that when a party and its candidates coordinate their spending, this is more like a contribution than an independent expenditure and can therefore can be regulated to further the government's interest in combating political corruption, or the appearance of corruption.

The case at issue stemmed from a 1986 U.S. Senate race in Colorado in which the state Republican Party paid for radio ads. The Federal Election Commission (FEC) claimed the party had exceeded the limit on coordinated expenditures and sought to slap a $5,000 fine on the party.

The Colorado GOP went to court and argued both that the ads were not coordinated with the Republican candidate and, even if they had been, the coordinated expenditure limit was unconstitutional.

In 1996 the U.S. Supreme Court agreed that the ads had not been coordinated but did not address whether the limit on coordinated spending was constitutional. Subsequently, both a lower court and a federal appeals court agreed with the state GOP that the limits were unconstitutional - - decisions rejected by the Supreme Court in its June 25 decision.

Justice Clarence Thomas, joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony Kennedy, dissented. They would have ruled that the limitation violated the First Amendment. They observed that a political party and its candidates share a near unity of interests in promoting the party's program by cooperating to get the party's candidates elected.

Additionally, the dissenters would have credited the undisputed evidence in the record that political parties tend to concentrate their financial resources to support candidates in close races - - especially challengers, where party support might make the difference between upsetting a well-to-do incumbent and losing. (Far from hurting the political process, political scientists have long confirmed that this "targeting" by political parties benefits the electoral process because it promotes more competition and greater turnover in legislative races.)

While the decision is disappointing for the many individuals of average means who contribute to political parties as the most effective means of amplifying their voices to bring about policies they support, the Court's decision didn't change much. In fact, it preserved the status quo by relying on a long line of cases beginning with the 1976 Buckley v. Valeo decision in which the Court held that direct contributions to candidates may be limited to prevent candidate corruption caused by large contributions.However, in numerous cases the Court has also reaffirmed the unconstitutionality of governmental limits on independent spending by individuals, political committees, and political parties.

Additionally, the High Court in its latest decision noted that a political party is not "so joined at the hip with candidates that most of its spending must necessarily be coordinated spending."

The "soft money" targeted by McCain-Feingold refers to money raised by political party committees that the parties do not use to expressly advocate the election or defeat of federal candidates or make direct monetary contributions to candidates' campaigns.

The national political parties use this money to support state parties and state candidates, to identify and register voters, to get out the vote on election day, andto publish issue advocacy advertisements to advance the party's legislative agenda. Since party soft money by definition may not be used to expressly advocate the election of federal candidates, McCain- Feingold's ban is not justified by either the corruption-of- candidates rationale or the circumvention-of-individual-limits rationale relied on by the Court in Colorado Republican.

In an important related decision, a district court in Alaska has held that a state soft money ban was unconstitutional. In Jacobus v. Alaska - - a case which has received virtually no publicity - - Judge James Singleton held that subject to reasonable limits, political parties have a constitutional right to establish a soft money account (beyond the reach of contribution limitations), in addition to an account to be used for direct candidate contributions and express advocacy.

Judge Singleton recognized that "restricting donations to political parties for purposes unrelated to nominating or electing candidates (i.e., issue advocacy, voter registration, etc.) significantly interferes with the protected rights of speech and association." He further held that "no court has recognized a risk of quid pro quo corruption from such activities, nor is there any appearance of corruption from such activities since the parties and candidates do not share a metaphysical identify."

Based on this correct understanding (which is consistent with Colorado Republican), he concluded that "donations to political parties for purposes other than nominating or electing purposes (i.e. issue advocacy, voter registration, etc.) may not constitutionally be considered contributions subject to regulation under the Act."

While the Colorado Republican opinion maintains the status quo regarding limits on contributions to candidates, it provides no support for McCain-Feingold's ban of party soft money. Indeed, it supports the opposite conclusion.