People frequently complain about money in politics. Others complain that campaign finance rules suppress “free speech.” Which brings up the question in the Supreme Court case NRSC v. FEC.
Campaign Spending
Both Congress and federal courts have claimed that the United States has the power to restrict a group’s ability to support political candidates financially.
The Federal Election Campaign Act (FECA) restricts a political party’s spending on campaign activities in coordination with candidates. 52 U. S. C. §30116(d).
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
The question is, does the Federal Election Campaign Act (FECA) violate the Constitution?
In 2001, this Court upheld those coordinated-expenditure limits as consistent with the First Amendment.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
Back in 2001 the Supreme Court said campaign finance limits were consistent with the First Amendment. What did that court base its decision on? The case Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., referred to in this case as Colorado II.
Because a party’s coordinated expenditures, unlike expenditures truly independent, may be restricted to minimize circumvention of the Act’s contribution limits, the Party’s facial challenge is rejected.
Federal Election Comm’n v. Colorado Republican Federal Campaign Comm.
So the court said Congress can restrict these expenditures to prevent them for exceeding the contribution limits the Congress has set. That’s like saying Congress can do that because Congress does that? But what about this case?
Petitioners—a group of candidates and political party committees—challenged FECA’s political-party coordinated-expenditure limits under the First Amendment, arguing that Colorado II is no longer good law.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
This Colorado II never was law, because the courts cannot make law. At the federal level, Congress has all the lawmaking powers, at least according to the Constitution, but that doesn’t stop courts from playing follow the leader.
In light of Colorado II, the en banc U. S. Court of Appeals for the Sixth Circuit rejected petitioners’ First Amendment challenge. This Court granted certiorari.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
Which is it? Does FECA violate the First Amendment or not?
First Amendment
At least this case is about the First Amendment, since it’s a law made by Congress.
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
This is interesting, since no one is being prevented from speaking, nor are they being compelled to speak. Let’s see how the court treats this.
This Court has determined that political parties—as well as candidates, private individuals, and outside groups—may make unlimited independent expenditures during political campaigns. …. This case concerns FECA’s limits on spending by political parties in coordination with candidates.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
Again, this is about spending money, not about speech. At least not directly.
FECA limits political-party coordinated expenditures. FECA’s limits impair the party’s traditional forms of communication such as advertisements; preclude parties from amplifying the voice of their adherents; impose additional monetary costs and burdens on political parties; and inflict a “stifling effect on the ability of the party to do what it exists to do.”
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
Ahh, we finally get to a form of speech, as part of traditional forms of communications. Advertising can be speech, for a radio, television, or social media video ad, but it’s better described as publication, which is freedom of the press.
Statutory limits on contributions to candidates or parties are subject to “closely drawn” scrutiny.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
In other words, the courts make government work a bit harder to infringe on your rights.
To satisfy that standard, a regulation may not be “disproportionate” and must be “necessary” and “narrowly tailored” to its asserted goal. … The Court must assess: (i) the Government’s asserted interests in imposing the limits at issue and (ii) the fit between the limits and the Government’s asserted interests.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
If it is necessary to infringe on someone’s rights to attain the “asserted goal,” doesn’t that make that goal a violation of the Constitution?
The political-party coordinated-expenditure limits fail to satisfy the closely drawn test.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
So even with the court saying government can infringe on your rights if they’ve got a good enough reason, this law still fails.
Ultimately, the First Amendment question in this case boils down to whether FECA’s limits on political-party coordinated expenditures are permissible in order to prevent circumvention of the base limits on contributions to candidates through earmarked contributions to parties.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
However, the courts seem to ignore the fundamental question: Does the Constitution delegate to Congress the authority to limit campaign funding? Because nothing I’ve read in the Constitution would appear to authorize Congress to pass such a law. What about the disclosure requirements of the law?
With respect to disclosure laws: FECA requires that political parties and candidates publicly disclose both the contributions they receive and their spending on campaign activities, including on coordinated expenditures. §30104(b). As the Court emphasized in McCutcheon, disclosure has become a much stronger anti-circumvention tool over time because of “modern technology,” especially the Internet.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
So making political parties and candidates disclose their contributions and spending is a better tool to prevent circumvention of these arbitrary spending limits, the court still hasn’t justified the spending limits themselves.
Kagan Dissent
Justice Kagan dissented with the opinion, joined by Justices Sotomayor and Jackson.
For over half a century, a federal statute has guarded against actual and apparent quid pro quo corruption in our political system by limiting the amount of money a donor can contribute to a candidate.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
Wait, if quid pro quo, literally “something for something” is illegal, then our entire economy is illegal. While the government may have a goal of stopping illegal trading, the idea that Congress can regulate something that might appear to be illegal is a violation of due process.
The law’s theory is simple: A candidate may be induced to trade official acts for campaign contributions—and the bigger the contribution, the stronger both the candidate’s temptation and the public’s suspicion.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
What about the donor? What if they really believe in the candidate and want to donate to help them win office? If they don’t ask for official acts in return, why should the donation be illegal?
The same statute also prevents circumvention of the contribution limits by capping political parties’ “coordinated expenditures” with candidates.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
Again, Justice Kagan’s logic seems to be that Congress can make laws to prevent people from getting around the contribution limits and the Constitution does not delegate to Congress the power to establish. This seems to be an excellent example of circular logic.
But today, the Court rewrites the rules, to allow circumvention of the contribution limits.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
You mean those limits the Constitution didn’t authorize Congress to impose?
So the Court ushers back in the same opportunities for quid pro quo corruption that the contribution limits were meant to check.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
Notice, Justice Kagan doesn’t claim that the court’s decision means there will be corruption, just the opportunity for corruption. That is a deprivation of liberty without due process of law. And she goes on.
Contra the majority, nothing in the First Amendment mandates that outcome—as indeed this Court has held before. The First Amendment permits campaign finance restrictions that are narrowly tailored to protect against quid pro quo corruption and its appearance.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
Again we see a justice of the Supreme Court simply making things up to support her opinion. The First Amendment says nothing about campaign finance. The First Amendment prohibits abridging freedom of speech. If spending your money is an expression of your ideas, then it would be included in freedom of speech and press, and therefore protected from arbitrary restriction except for actual criminal activity, not potential criminal activity.
The majority must overrule Colorado II to arrive at its outcome—so, once again, disregards and disrespects the core legal principle of stare decisis.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
That’s because every justice on the court takes an oath to support the Constitution, not stare decisis. This arrogant idea that a previous court could not possibly be wrong is at the heart of judicial overreach and malpractice.
Conclusion
So how did the court decide this case?
Held: FECA’s political-party coordinated-expenditure limits violate the First Amendment.
National Republican Senatorial Committee et al. v. Federal Election Commission et al.
The case is limited to the coordination between political parties and their candidates. But if it’s a violation of the First Amendment to restrict financial assistance by political parties, then why is it not a violation to restrict similar assistance from other groups, corporations, and private individuals?
While many people decry money in politics, there has always been money in politics, and as recent history has shown, there will always will be money in politics, especially when we allow governments to act far beyond their legal authority. To me, the problem with money in politics is not the spending of money, but the fact that We the People allow ourselves to be persuaded by the marketing that money funds. If we chose our representatives by talking with them, researching their actions, and seeking those with the best character, then that money would have less influence on us. After all, if a candidate has good character, they would be much less susceptible to an offer of quid pro quo, would they not?
