Trevor raised the question last week, in my words not his: "Why
would organizations such as the congressional campaign committees, dedicated
to federal races, require the freedom to raise and spending nonfederal
money"?  I promised an answer, and in brief (the subject is a large one),
here is a rough sketch of the answer.  It is an important question less for
purposes of continued argument of the three judge district court opinion in
McConnell, and more because it goes to the empirical assumptions behind the
various constitutional and legal arguments about the role of parties that
will rage on into the future.

	Historical point: in l969, the Democratic Senatorial Campaign
Committee had three to four full-time employees, including an office
receptionist, and it raised its money largely through the Democratic
Congressional Dinner supplemented by some more limited fundraising
initiatives and the regular receipt of funds from stalwart donors, mainly
labor.  This state of affairs persisted until the l980"s.  Over this time,
Democratic incumbents were satisfied to raise mostly their own funds, and to
help out from time to time in recruiting and encouraging challengers.  The
DSCC was then truly focused on helping Senate candidates; but it could only
help a few of them, and it could only help them so much.  The DCCC was
organized much the same way, and its mission and scope of operations were
similar.

	What has happened since then, such that the DSCC and DCCC have built
vastly larger staffs, by a factor of 20-30 (depending on the years, and all
pre-McCain Feingold).  As I noted, the subject is a large and complicated
one, but these are some of the defining moments in the development of these
small-scale, incumbent-centered organizations, into true political party
units.

	1.  The Republican romp in 1980.  Both the Congressional committees
were stunned (along with their constituencies) by the effective Republican
national campaign of l980 that brought to prominence the effective
coordination of the Republican party committees, and more particularly the
powerful use of the RNC under Chairman Bill Brock to achieve national focus
and the integration of party efforts at the national, state and local
levels.  Both the DSCC and the DCCC--not to mention, the DNC--begun to study
closely, and emulate where possible, this model.

	2.  The DNC could make a contribution to a more coordinated and
integrated effort, but its ability to do so was significantly limited by a)
a weaker membership base than its Republican counterpart; 2) a large chunk
of time "out of power" (meaning, the White House), from l981-l992; and 3) an
inevitably Presidential focus when Democrats did hold the White House.  In
that sense, the DNC is to the Presidential candidate, what the DCCC and DSCC
are to House and Senate candidates: the locale of first importance for
planning and, to some extent, funding, separate and apart from its
contribution to the overall coordinated party efforts to develop national
messages; fund state and local parties; and establish and finance programs
of ticket-wide value and focus. 

	3.  It is accepted that our politics are now candidate-centered; and
so it should not be surprising that the congressional campaign
committees--and the DNC when a Democrat holds the office--require the
support and involvement of candidates.  Fifty or sixty years ago, parties
depended on "bosses"; their strength lay the local and state level, and
candidates depended on parties for selection and what they needed in the way
of support.  The bosses are gone; state and local parties have atrophied;
and now candidates are party leaders.  Hence, it is not unusual to have
politicians with a weak history of party support and loyalty--e.g. Ronald
Reagan--become party leaders because they have become successful candidates.

	4.  But this represents the adaptation of existing party units, like
the congressional campaign committees, to the new demands of building and
maintaing a party apparatus. The congressional campaign committees
undoubtedly maintain a priority focus on Senate races, as does the DCCC on
House races and the DNC, on races for the Presidency; but each of these
units have long recognized the need to provide leadership as party
organizations, in the broadest sense, on issues ranging from the "Democratic
message" to the organization of coordinated campaigns. This becomes
particularly urgent when, as is the case, state and local parties are
relatively weak.  Example: when Alexander Heard wrote The Costs of
Democracy, published in l960, state and local party organizations controlled
party resources, sending them "upstream" to the national parties.  In recent
years, the flow of funds has reversed direction, and a DNC Chair like Paul
Kirk, for example, stressed the need to supply resources to state and local
parties.
	
	Footnote: one of the earliest uses of soft money--and in those days,
not allocated--was the financing of the costs of the Democratic Response to
the President (Reagan's) State of the Union Address. Whose Senate race did
this help?  All three of the national party committees donated funds for
this purpose.

	5.  Over the years, the DSCC and DCCC have found, as would be
expected, that with a varied source of funds, including nonfederal funds
accepted and spent outside the strictures of the FECA, they can more
flexibly meet the demands they face as national party organizations. The
funds help them underwrite a wide variety of costs not directly related at
all to the recruitment, planning or funding of a specific Senate race.

	 One other footnote: issue advertising of the kind most distressing
to the reform movement, only materialized beginning in l995.  Soft money was
committed to a wide range of other uses for the first 14 years of the DCCC's
operation of nonfederal account, and for the first fewer years of the DSCC's
much shorter experience with soft money.  

	Without the additional funding flexibility, the parties are much
more likely to be what Trevor imagines them to be: conduits for the
financing of Senate races and only Senate races, in the narrowest sense.
They will simply not have the funds to do more.  And who will assume these
tasks, or help to fund them?  State and local parties?  Doubtful.  The
DNC--perhaps more likely, at least when the Democrats hold the White House,
though as noted, national committees are not much less focused on
Presidential candidates, than DSCC and DCCC on Senate and House campaigns.

	6.  Are the parties only alter egos of the candidates?  No, not at
all: for with the establishment of broad-based, well-financed, professional
staffed committees, the congressional campaign committees can function as
institutions that benefit from the involvement of federal officials, but
without depending upon them for every aspect of fundraising, planning or
execution.  Should the Supreme Court uphold the prohibition on candidate and
officeholder soft money fundraising, then the parties will develop whatever
capabilities they can to replace those of the candidate/officeholder
community. 

	7.  In short, parties are adaptable, as the last 20 years' history
of party activity at the national level demonstrates.  Parties will organize
eventually around whatever sources of legitmacy and power may be at hand,
though they will not necessarily prosper.  But it is surely a mistake to
confuse a change in the structure of party activity, with the absence of
party activity, simply because as a product of historical development, the
congressional campaign committees, while filling a broader role within the
party structure than they did 50, 60 or more years ago, continue to reflect
the leadership and interests of Congressional leaders and candidates.    

	8.  This is all fairly important because the debate over campaign
finance reform has been torn in two fundamentally different directions.  To
some it is an argument about law: about whether Congress can reinvigorate
enforcement of the l970's reforms, and about the constitutional limits of
that authority.  It is in this connection that we have much expert testimony
about the "collapse" of those reforms, and about such issues as whether
people can distinguish candidate from party issue ads.  To others, though a
minority, it is about the desirable or undesirable effects of Government
intervention in the political process on the structure of politics.  This
second perspective requires something more than an argument about legal
rules and constitutional limits, though it can accommodate such an argument.
Such a perspective calls for serious attention the historical development of
party and interest group activity in this country, relating them to other
conditions affecting political activity and democratic decision-making in
this country.  We need, in other words, to talk about politics and the law,
in that--not the reverse--order. 

	 I suppose that in this country, with many topics in public affairs
reduced to a legal claim or argument, it is not too much of surprise that we
have trouble in achieving this focus.  Yet, to the question: "what should we
do to enforce the Watergate reforms", I would answer: "Let's ask first the
purposes sought to have been achieved with those reforms, and whether those
purposes matter to us today, in the changed political circumstances of our
time"?  The question, I would argue, is a political, not a legal, one,
though we tend not to treat it that way.

	9.   Last comment: after 1600 pages, the three judges agree that
there is no evidence that large contributions, i.e. soft money
contributions, bought any official's vote on legislation.  Judge Leon
upholds the ban on certain "candidate-centered" issue advertising on the
grounds that it directly affects federal elections, and hence cannot be
reconciled with Congress's constitutionally justified prohibition on soft
money used for those purposes, or with the "appearances" prong of the
Buckley anti-corruption rationale.  Judge Kollar-Kotelly also relies on
"appearances", but rescues the first prong--the one concerned with straight
"corruption"--by redefining it.  She is concerned not with money-for-votes,
for which there is no evidence, but with money-for-access: which does not
underlie the historical Buckley test, but emerges in throw-away glosses on
that test in cases like Shrink Missouri.  I would argue--though not now, as
it is late and this is already too long--that this is poor law but worse, it
is barely coherent as a picture of politics. And the latter is the more
significant of the two failures.