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.

        Perhaps everyone’s too jaded, but in the interest of jump-starting what might prove to be an interesting conversation about the constitutionality of limiting contributions to political committees that make only independent expenditures (IEPCs), I thought I’d offer a response to Rick’s good comments of yesterday.  First, I take it that Rick and I agree that CMA isn’t really authority for the proposition some think it isthat contributions to IEPCs can’t be limited.  That isn’t to say that he and I agree that CMA does say that they can be limited, just that we agree that it doesn’t say the opposite.

        Second, we appear to agree that the ultimate use of funds by an entity as contributions or independent expenditures doesn’t control whether they can be limited.  That they’ll be used as candidate contributions is a sufficient but not necessary condition for limiting them.  Like the soft money contributions at issue in McConnell, contributions that can be shown to have some corruptive potential are also subject to limitation.

        Third, Rick and I agree that if the argument depends on “first principles”i.e., one doesn’t think that CMA means that contributions to IEPCs cannot be limited or, conversely, that footnote 48 and the rest of McConnell don’t mean that they can be limitedthen the question turns on whether limits on such contributions worryingly burden first amendment interests and what kind of state interests might justify those burdens.

        We disagree, I take it, over the weight of the individual burdens and state interests.  Rick doesn’t directly address my point that contribution limits here pose a small burden on speech interestsBuckley, I take it, is pretty clear on thatbut rather makes the fair point that associational interests are also at stake and although Soros’s might not be burdened very much a smaller contributor’s might be.  (Rick credits Roy for this point.)  The burden, I think, would be that someone who wants to have something over $5,000 independently expended but less than a Soros amount would achieve real efficiencies and more bang for the buck by contributing to an IEPC rather than by engaging in independent expenditures herself.  Fair enough.  That’s how economies of scale work.  I don’t see this observation, however, as having much constitutional traction.  In McConnell, for example, the Court set up its whole discussion of the soft money provisions with the following:

Unlike expenditure limits …, which preclude most associations from effectively amplifying the voice of their adherents, contribution limits both leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates, and allow associations to aggregate large sums of money to promote effective advocacy.  The overall effect of dollar limits on contributions is merely to require candidates and political committees to raise funds from a greater number of persons.  Thus, a contribution limit involving even significant interference with associational rights is nevertheless valid if it satisfies the lesser demand of being closely drawn to match a sufficiently important interest.

124 S.Ct. at 657 (quoting Buckley, Shrink Missouri, and Beaumont).

As I read this passage, limits on IEPCs’ expenditures would “preclude [them] from effectively amplifying the voice of their adherents” and so pose a worrying burden on associational rights while limits on contributions to them would “both leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates, and allow associations to aggregate large sums of money to promote effective advocacy.”  I don’t think the Court would see a worrying associational burden there.  And the Court goes on to say that “[t]he overall effect of dollar limits on contributions is merely to require candidates and political committees to raise funds from a greater number of persons.”  That “merely,” which I’ve emphasized, speaks much to me but maybe I’m overreading things.  In any event, the passage’s last sentence, which basically okays “even significant interference associational rights” under certain conditions, suggests to me that the Court is unlikely to find a worrying burden on associational interests here.

        That leaves the state interest side of things, where Rick and I also differ in opinion.  The question is whether IEPCs are more like party committees or the “newspaper editors” and “political talk show hosts” that the Court mentions in footnote 51.  Rick points out that, by definition, IEPCs are truly independent from the candidates.  Even if we assume that, however, that doesn’t mean there can’t be any corruptive potential in contributions to IEPCs.  After all, after Colorado I we have to assume that party independent expenditures are truly independent but, as the Court found in McConnell, that doesn’t mean that contributions to parties for that purpose don’t have any corruptive potential.  Again, coordination might be a sufficient condition for limitation of such contributions but I don’t see it as a necessary one.

To my mind, if one believes that up through McConnell the issue hasn’t been foreclosed by case law one  way or the other (I personally don’t take this view, of course), the question then is whether contributions to IEPCs have corruptive potential.  I suggest two ways they canthrough circumvention and concentration, both rationales the Court itself has put forward.  First, corporations, unions, and individuals contributing money to IEPCs that they would have contributed through party committees before BCRA are in some sense circumventing the soft money limitations, especially if they hope for and achieve the kind of access and influence the Court thought soft money got them.  I don’t see non-coordination as erasing that possibility.  (Rick doesn’t discuss how his analysis works differently for contributions by Austin entities.  I’m assuming that he believes that IEPC independence dispels any worry with respect to them, but I might not be correctly characterizing his position.)

Second, as the Court pointed out in Colorado II, the political “parties’ capacity to concentrate power to elect is the very capacity that apparently opens them to exploitation as channels for circumventing … spending limits binding on other political players.  And some of these players could marshal the same power and sophistication for the same electoral objectives as political parties themselves.”  Colorado II, 533 U.S. at 455.  This, I take it, is the flip side of Roy’s point but one the Court would put in the state interest, rather than the individual burden, column.  To the extent IEPCs because of their size and efficiencies can better monitor, reward, and punish elected officials there’s some reason to think that those officials will become beholden to them.  That can work through either access or influencethe kind of things the Court worried over in McConnell.

        Rick and I, I think, agree on much and have an honest disagreement about other things.  Others, I’m sure, will agree and disagree on different points.

-- 
Professor Rick Hasen 
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