Responding to Ortiz (II) on the Constitutionality of Limiting Contributions to 527s

Following up on this post from yesterday on Dan Ortiz's comments submitted to the FEC, Dan replies here (on the election law listserv).

Dan's post is very helpful in clarifying where we agree and disagree. I think Dan has made some good points on the weight of the individual burdens and, if those opposing unlimited contributions to truly independent expenditure committees in fact win in court, I think it will be on this basis. He is right that my concern is with the associational interest, but I agree that language from the Supreme Court's New Deference Quartet (Shrink Missouri, Colorado II, Beaumont, and McConnell) only adds support to his position.

But I think that to the extent that the state needs to come up with a strong state interest to justify such a limit, it cannot do so unless the Supreme Court is willing to rethink its fundamental distinction between contributions and expenditures in Buckley.

Both of Dan's arguments on state interests that could justify limiting contributions to fund independent expenditures could justify limits on independent expenditures themselves. Here is the nub of Dan's two interests:
(1) "corporations, unions, and individuals contributing money to [these committees]...are in some sense circumventing soft money limitations, especially if they hope for and achieve the kind of access and influence the Court through soft money got them."
(2)"To the extent [these committees] because of their size and efficiencies can better monitor, reward, and punish elected officials there is some reason to think that those officials will become beholden to them."
On Dan's first point, I don't think "especially" is correct. If the soft money ban was put in place to prevent parties from selling access, these independent expenditure committees would be "circumventing" the law only if they were trying to achieve access and influence.
How would a group achieve "access and influence" through truly independent expenditures, or, looking at Dan's second point, how could politicians become "beholden" to committees making independent expenditures? The idea must be that independent expenditures can create this relationship. That's not a ridiculous idea at all, but it is an idea that was rejected explicitly in Buckley (footnote omitted):

Second, quite apart from the shortcomings of §608(e)(1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending §608(e)(1) contend that it is necessary to prevent would be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate's campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act.
Section 608(b)'s contribution ceilings rather than §608(e)(1)'s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, §608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the contribution limitations, §608(e)(1) severely restricts all independent advocacy despite its substantially diminished potential for abuse.

Until the Supreme Court is willing to rethink that line of reasoning, coming up with an adequate state interest to limit contributions for truly independent expenditures will be tough. And how effective would such a law be anyway if Soros can still spend his $10 million? It will harm those with relatively little money (Roy's point), without (assuming arguendo) preventing Soros from using his millions to buy access through his independent ads. How can that serve the "substantial state interest" the court required in Buckley?

Posted by Rick Hasen at April 14, 2004 03:58 PM