Legislation Class Notes 1/30/04


More on Colorado Republican II


Yesterday, we were steered to the fact that Souter’s summary of Buckley about coordinated versus individual expenditures treated as contributions.  They’re treated that way because of principled fear that they might be used as efforts to evade the contribution limits of the Act through prearranged things that looked like contributions.


Should political parties be viewed as different from individuals or corporations?  What argument does the Republican Party make that they should be viewed as fundamentally different?  The party is there to help candidates.  How does that make them deserving of some kind of protection?  The Republican Party has taken the position that political parties, just because they “bundle” money, in some sense, doesn’t mean you should view them as conduits to corruption; maybe they’re conduits to something else.  What are candidates?  Are they simply repositories of money?  What are they trying to do as participants in the political process?  Candidates are the exponents of public policy ideas.  You can’t separate parties from candidates.  That’s why they shouldn’t be regulated even in their coordinated expenditures.  That could be viewed as an extension of the candidate’s speech.


The government has a different argument in this case.  The government restates the Buckley distinction that coordinated expenditures have to be viewed as something in the way that we’re already identified.


Souter is good at writing opinions because he summarizes everybody’s views.  What is the government adding about parties now?  Up until now we’re had coordinated expenditure limits.  The government says that if you abolish these, you institutionalize evasion of the expenditure limits.  If you want to call it evasion, it goes on already.  The Party can spend two cents per voter on a candidate.


Souter rejects the Republican Party’s argument for several reasons.  One is historical and one is philosophical.  It is argued that the limit has been in place for a long time and has worked so far so there is no need to change it.  How can the Republican Party be arguing that political parties won’t be able to survive if they’ve been surviving?  Do they need this constitutional protection?  Well, they’ve already been limited and arguably not harmed.


What is Souter saying here?  Parties are in the same position as some individuals and some tax spending limits held valid to them higher limits than most other groups and PACs.  Why are they no different in his view that he describes as “aggregations of private interests bundled”?  Group of individuals giving their opinion.  Why should we worry about that?  Souter takes it back to the idea of corruption.  This is what we forbid.


Parties act as agents for spending for obligated officeholders says Souter.  If you follow his line of analysis, bundling of private interests.  Deregulation, 1996, democratic party coffees at Clinton White House Banking industry sec of treas if donate certain amount of soft money gave access you could talk with president and sec of treas.  President seemed to be selling access to Lincoln Bedroom if you had money for the party.  What about the watchdog groups for the industries?  They’re not contributing and they don’t get to have coffee in the White House.  Are we talking about a refl of trad quid pro quo corruption?  Unlimited coordinated expenditures control over candidate through conduit corruption.


Small number of high rollers who played substantial part in each party.  60 contribs who gave at least $100,000 to repubs and 70 to demos.  Unions giving democratic party this much money?  Want party officials seek to make federal or state office holders to policy priorities of those donors?  Coffee, phone calls, other stuff the rest of us don’t get.


Coordinated spending is when you’re running for office…the definition is in some dispute: “Magic words”?  What is sufficient to be coordinated?  Conscious notion that you as the party will take money that you get from other people and will use it in coordination with someone else.  You don’t tell him what you’re going to do.  Party being more independent.


Souter and Court decides that parties don’t deserve a uniquely privileged First Amendment position.  They can’t spend unlimited coordinated money.  They should be the same as individuals and PACs in having contribution limits.


Last important thing about this opinion is…pointed out weaknesses to position.  4B – record in this case to establish tradition quid pro quo corrupt to justify lmts set by Congress.  Ample grounds!  For this kind of corruption.  Why?


Realist expectation really occurred.  Tacit?  Who says not tacit?  Could be parties also seeking.  People’s affidavits that Souter is citing.  What are they telling us?  The candidates know who is giving to the party.  It’s supposed to be anonymous.  Parties know!  No!  Bookkeeping.  What if you raise money from the party?  What does the party do?  When Wirth succeeds in raising money for the party, what happens?  Push this a little bit?  Closeness of connection?  There’s a pass-through here.  When Wirth raises money, the donors expect he’ll get donations multiplied by a certain number.  If I don’t get my pass-through I can go and complain to the party.  The deals are not merely tacit.  From Souter’s pov, that oughta be nuff in order to coordinated expenditure limits needed.  Money being handed over to candidates, or bonus that lets them have more money.


There are…dissent…majority here…a couple of things going on…Court is fractured.  Parties are a hybrid because you can’t easily distinguish between a candidate and its financial backers.  They straddle a gap between candidate and contributor.  They are also a financial mouthpiece.  The financial mouthpiece part can’t run around the policy aspect.  In Colorado Republican I, they are reiterating that independent expenditures correspond roughly to expressions of support for issues and candidates.  Coordinated expenditures can be limited like contributions are.




This is another example of Congress after a decade of tring and failing and a proedral saga like title 7 at beigning of semester ends up in 2002 acting bipartisan reform act took effect after election.  Two key provisions: soft money and electioneering communications.  Will only go over need to know.  Very fluid area.  Not any answers for yet.


Rise in hard money that BCRA put in place.  Raising indiv contribution levels.  Modest hard money changes.


Soft money


What can political parties do with soft money after McCain-Feingold?  Nothing!  They can’t use soft money.  That’s the law now!  They can’t receive it, and they can’t spend it.  What about local and state committees of political parties?  Can they spend $100,000 on federal election activities?  What can they spend it on?  They can spend it on local and state races.  They can’t use it on federal election activities.  But how do we define federal election activities?


They are trying to herd cats.  Is there a firm line between this?  Close to cross line?  You bet.  Are local campaign employees spend something on something close as they can and maybe a little over.  Congress tells people soft money is off the table for federal elections.


Candidates can’t solicit soft money.  But they can raise money for a voter registration group.


Non-partisan efforts.  Smaller amounts…aw, the heck with it.


But what’s a non-profit?


Electioneering communications


Congress imposes dramatic new restrictions on campaign-season advertising.  What is an electioneering communication?  The definition has several parts and it is very specific.  Why does the definition matter?  What limitations attach to it?  It’s more definitive than the former “magic words” standard.  What can happen as a consequence of being involved in electioneering communications?


This is a question of how you’re going to be able to fund these things.  You must fund them with hard money.  You can’t use soft money to fund these ads.  Corporations and unions couldn’t use the general treasury to fund these ads either.  Ads are one of the most expensive items in political campaigns.  People can’t have unlimited appetites for advertising anymore.  Some say ads are First Amendment activity.


What’s the Court up to?  It was a stunningly unexpected opinion.  There are long excerpts.  It is the longest Supreme Court opinion ever issued.  We want to focus on the big picture and the two issues that we just talked about.


The key switch, as has been true of so many issues, is O’Connor.  Stevens, Ginsburg, Souter, and Breyer, were willing to broaden their view.  O’Connor had not reached that point yet.


How much deference is the Court giving Congress?  What’s the definition of corruption?  What do they say about the constitutional interest?


We’re looking for some compelling governmental interest in order to limit the First Amendment.  The Court says that the constitutional interests are on both sides of the equation.  “Competing constitutional interests”…an unusual phrase.  The concurrence from Shrink Missouri is being moved into the majority.  There are constitutional interests on both sides of the equation, so Congress must help the Supreme Court balance them.  This is totally different than what was said in Buckley.  In that case, they demanded strict scrutiny, big interest.  Parallel to what courts do when we looked at 1979 and 1964 and complicatedness.


The Court relies heavily on Congress’s conclusion that candidates and donors have exploited the soft money loophole with parties serving as “willing intermediaries”.  They talk about the fact that top 50 soft money donors give substantial amounts of money to both parties.  It’s not just about promoting ideology, it’s about promoting influence.  But McCain says no evidence of vote-buying.  What is the comeback for that?


Corruption fulfilled because of access.  Example of legislation?  “Come on, we have to grow up a little bit here!”  There can be a broader kind of corruption: the agenda can be manipulated.  If you have influence over both parties, stuff may never even come up for a vote.  Things may never come up.  To claim that such actions don’t change legislative outcomes misunderstands the legislative process.  More sophisticated, broader view of what corruption is.  The Court says: “We get it”.


Next time, we’ll talk about the electioneering holding.  This is a transformative aspect of the opinion.  Dissent howls in disbelief at downfall of traditional quid pro quo view of corruption, plus a high level of deference to Congress to identify corruption.


The Court says: “We don’t know as much about this as Congress.  They are the experts.  Therefore, we will give them more deference.”


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