A Practitioner's View of Colorado Republican Federal Campaign Committee v. Federal Election Commission

Free Speech & Election Law Practice Group Newsletter - Volume 1, Issue 1, Fall 1996

December 1, 1996

Charles H. Bell Jr.

The Supreme Court decision in Colorado Republican Federal Campaign Committee v. Federal Election Commission may be influential despite its limited, direct impact on political party spending in federal elections. Instead, the case may be noted in the future as the "high water mark" of the Liberal Political Nanny State — the attempt to realign political and economic power by limiting the influence of money in political campaigns. That prospect is heralded by Justice Clarence Thomas' opinion (concurring in the judgment and dissenting in part) which points the way toward a principled rejection of the constitutional rationale for limitations on campaign contributions and spending, as enunciated twenty years ago in Buckley v. Valeo (1976).

Ironically, while liberals have groused at the "liberality" of the Buckley decision, and have debated whether to mount a frontal assault on the Buckley holding that public financing of campaigns was the constitutional predicate to severe limitations on private campaign expenditures, in the Colorado case, much to the liberals' surprise, the first sounds of gunfire in a frontal assault on Buckley's restrictive regimen on political contributions and spending were heard from the right. (While only Justice Thomas called for an outright repudiation of Buckley's distinction between contributions and expenditures, Chief Justice Rehnquist and Justice's Scalia and Kennedy also appear to be hostile toward campaign finance restrictions.)

The Colorado decision, of course, directly affects the rights of political parties to spend money independently in congressional and senatorial campaigns. The Colorado case involved pre-primary election spending by the Colorado Republican Party on advertisements against the Democrat incumbent, Senator Tim Wirth. At the time of the Colorado Republicans' expenditure campaign, a Republican nominee had not been selected to run against Wirth. Thus, they could have viewed the expenditures in question as "independent expenditures," a category of expenditure Buckley exempted from limitation (at least for individuals and PACs). The decision, in which seven justices concurred in the result, struck down as unconstitutional the FEC's rule that prohibited a political party from making independent expenditures.

The controversy in the Colorado case, however, involved the Federal Election Campaign Act ("FECA") limits on political party spending in federal races, contained in the provisions of Section 441a(d)(3) "coordinated expenditure limits." The FECA limits to $0.02 per registered voter the amount a state political party committee, and the national committee of a political party, can spend on congressional and senatorial campaigns in each state: in 1996, a state political party may spend over $30,000 in general election "coordinated expenditures" in support of each congressional candidate and more, depending on each state's voting age population, in support of its U.S. Senate candidate. These expenditures may be coordinated with the party's candidates. Their very coordination makes them something other than "independent expenditures," as acknowledged by both the author of the lead opinion, Justice Breyer, and the four justices who would have invalidated such limits.

While congressional enactment of these "coordinated expenditure" limits was considered a major liberalization of earlier FECA limits on political party contributions and expenditures, the Colorado Republican Party sought to invalidate the "coordinated expenditure" limits. However, the Breyer plurality opinion in the Colorado case expressly declined to reach the constitutionality of such expenditure limits. Justice Kennedy, with whom Chief Justice Rehnquist and Justice Scalia joined in dissenting in part on that point, contended that the section 441a(d) coordinated expenditure limit was unconstitutional, because there was no distinction between political party expenditures and the party candidate's expenditures the Supreme Court had exempted from limitation in Buckley. Indeed, Justice Kennedy found that political parties and their candidate nominees shared an identity, and that identity defeated any contention that party spending limits could be justified under Buckley.

However, it is Justice Thomas' separate opinion that may be a hallmark in the jurisprudence with respect to campaign spending issues. Justice Thomas flatly rejects the analytical distinction adopted in Buckley between contributions and expenditures. His opinion therefore lights the path to a future reconsideration of Buckley. As discussed below, such cases loom on the horizon.

The most important prospect of the Colorado case is whether it will result in a truly dramatic turn toward free speech in campaigns. The Buckley decision of the Burger Court, though viewed as a "half loaf" by liberals, justified detailed legislative restrictions on campaign contributions and spending favored by liberals. Liberals have a blind spot about the First Amendment when it comes to political communications. Whether it was the "right of access" under the "Fairness Doctrine" applicable to political issues coverage by the broadcast media, or limitations on campaign contributions and spending by "special interests," liberals have favored the most stringent regulatory limitations on political speech: a Political Nanny State. Here, the premise of liberals' leveling instinct is their fundamental interest in realigning political and economic power, and in fixing the rules to accomplish those ends -- in this case, restrictive controls of political speakers. The Supreme Court's decision in Austin v. Michigan Chamber of Commerce (1990) interpreted Buckley to provide constitutional support for legislation discriminating between different classes of contributors. In Austin, the Court upheld a Michigan statute prohibiting corporate contributions while leaving undisturbed the right of labor unions to contribute in state campaigns.

While the goal of enacting such limitations in the current Congress seems remote, liberals have been at work in the fifty states (especially in Missouri, Minnesota, Oregon, Kentucky and California) enacting, or seeking to enact, a variety of regulations which smother the use of private contributions in political campaigns. The harshness of these measures, some of which have been struck down already by lower federal courts, gives rise to the suspicion that the liberals' hidden agenda is to drive private money out of campaigns.

Propositions 208 and 212, citizen-qualified ballot initiatives on the November 1996 California ballot, display this liberal impulse. Emboldened by Ross Perot's attacks on campaign and lobbying spending by "special interests," Common Cause and a variety of liberal groups allied with Perot supporters to place a restrictive campaign finance measure, Proposition 208, on the ballot. Proposition 208 severely restricts individual and group contributions to candidates from city council to governor ($250 to local, $500 to gubernatorial candidates per election); imposes very strict "voluntary" expenditure limits (well below the amounts spent in recent competitive elections for such offices); imposes a "fund-raising blackout" period for three years of a four-year term of an officeholder (as well as his or her challenger); severely limits the aggregate amount any individual donor, PAC, corporation or labor union may contribute; imposes an additional aggregate contribution limit upon all non individuals to a single candidate of 25% of the candidate's overall spending limit; and throws in for good measure a variety of "fine print" technical rules to frustrate volunteer involvement in campaigns.

Not content with Proposition 208's draconian measures, a radical group allied with Ralph Nader spun off from the Common Cause coalition to qualify an even more extreme measure, Proposition 212. Proposition 212 mimics most of the Proposition 208 provisions, with lower limits and stricter prohibitions. Individuals would be able to give $100 to a candidate, $200 to a PAC, and $600 to a political party per election. Proposition 212 does not pretend to tiptoe around Buckley: rather, it mounts a frontal attack by expressly proposing "mandatory expenditure ceilings" for candidates without provision for any public financing. Further, Proposition 212 bans corporate and labor union contributions altogether while creating a special contribution limit for labor union PACs which is 100 times the contribution limits imposed on all other groups! Finally, Proposition 212 criminalizes all violations of the state campaign, lobbying, and conflict of interest laws. (The Proposition 212 reformers may have tripped, however, by abolishing the state's current rules limiting gifts and honoraria payments to elected candidates and public officials.)

Both measures currently lead in pre-election public opinion polls. California's voters, whose antipathy to elected officials is evidenced by their previous adoption of four "campaign reform" measures and two term limit measures at the ballot box, are expected to approve both measures. While confusion is likely to follow should both measures be adopted, legal challenges are assured.

Propositions 208 and 212 contain provisions similar to (and in some respects, more extreme than) those adopted by voters in Missouri and Wisconsin, which federal courts invalidated in 1995. Legal challenges to Propositions 208 and 212 are likely to present the Supreme Court with the fundamental question posed by Justice Thomas's concurrence: whether the Court should abandon Buckley in favor of substantially fewer restrictions on campaign spending.

The narrow holding of the Colorado case is likely to have limited impact on political campaigns of political parties. Political parties may engage in non-coordinated, independent spending to support their nominees and to oppose the other party's incumbents. Some political parties may launch an independent expenditure anti-incumbent attack to soften up the opposing party's incumbent. The political party may be able to undertake such a negative campaign, because the party leadership can -- and arguably must -- initiate such a campaign before its own nominee has been selected. Such a campaign could be conducted on the assumption the eventual party nominee would not object to the message or tenor of the negative attack. That is not assured, however, since candidates and their advisers generally like to control the message (particularly negative messages) made by perceived proxies of the candidates (such as their political party). It is just such control that compromises the requisite "independence" of independent expenditure efforts.

Even if freed to make independent expenditures, however, political parties will not be free to engage in political speech and association until the FECA "coordinated expenditure" limits fall. This is because a political party's fundamental nature, as a coalition to elect its nominee candidates, will make truly independent spending difficult or impossible.

Current FEC regulations strictly limit who can participate in independent expenditure campaigns, by restricting severely the ability of independent committees to use vendors or high level supporters of the candidate who benefits from the independent expenditure committee's efforts. Moreover, as noted by Justices Thomas and Kennedy in Colorado, political parties are -- or are at least perceived by the public to be -- largely creatures of their candidates and their supporters. Ironically, FEC rules require independent committees to be "independent" of, and not creatures of, the candidates they support.

Thus, unless a political party is prepared to select certain officials and vendors and send them into a virtual "campaign black box," to operate free from contact and coordination with the party's candidates, the candidates' consultants, and fund raisers and other party volunteer leaders who are associated with those candidates, it will be very difficult for the political party to conduct a truly independent expenditure effort under FEC rules, as now permitted by the Colorado decision. And FEC enforcers, who have long considered political parties to be "mere conduits" for contributors seeking to corrupt a candidate (as reflected, for example, in the FEC's "soft money" allocation rules for political party spending and its political party "affiliation" rules) are sure to interpret Colorado narrowly, granting little if any latitude for political party independent expenditure campaigns.

For all of these reasons, the most significant impact of the Colorado decision is likely to be the prospect of rejection of Buckley's rationale for limitation on campaign contributions and spending, as urged by Judge Thomas.

*Charles H. Bell, Jr. is a partner at Bell, McAndrews & Hiltachk in Sacramento, CA, and serves as Vice-Chairman of the Free Speech and Election Law Practice Group.