The U.S. Supreme Court issued an order today affirming an appellate court’s ruling in Republican National Committee v. Federal Election Committee, deciding not to hear a case challenging contribution limits for political parties when applied to non-federal efforts.
“While the court’s ruling is disappointing, it is not out of line with the Court’s precedent,” said Bradley A. Smith, the chairman of the Center for Competitive Politics and a former FEC Chairman. “The ban on soft money is a self-imposed problem Congress mandated for political parties.”
“It makes no sense for Congress to continue hamstringing political parties while independent groups, corporations and unions may spend unlimited amounts of money on political advocacy,” Smith said. “Instead of trying to subvert Citizens United by re-imposing limits on independent political speech, Congress should raise or lift the arbitrarily low limits restricting political parties, especially for activities not connected to federal elections.”
In the two-sentence order, the Court noted that Justices Scalia, Kennedy and Thomas “would note probable jurisdiction and set the case for oral argument.” This case was an as-applied challenge to the contribution limits for non-federal activities. If a new case is filed directly challenging provision of McCain-Feingold banning soft money for parties, virtually the only remaining plank of McCain-Feingold that hasn’t been ruled unconstitutional, we hope Chief Justice Roberts and Justice Alito may reconsider this question.
“As the 2010 midterms approach, progressive-leaning interests such as the AFL-CIO, MoveOn.org and EMILY’s List as well as conservative-leaning interests such as the newly-formed American Crossroads, U.S. Chamber of Commerce and the National Rifle Association—and countless others—have more flexibility to advocate for the election or the defeat candidates than political parties,” said CCP President Sean Parnell. “Retaining the soft-money ban for parties makes little sense in a new era of nearly unfettered independent political speech.”
At a February Senate Rules Committee hearing on the aftermath of Citizens United, CCP Vice President Steve Hoersting pressed Congress to reconsider its position: “If it is really your position that accepting support from your allies corrupts you, well, you are a co-equal branch of government, and the Court will take you at your word,” he said. “What the Court will no longer take, however, now and for the foreseeable future, is any variation of the argument that outside groups can be silenced because they may speak more effectively than some Senators may prefer.”
Center for Competitive Politics academic advisor Joel M. Gora, also a professor at the Brooklyn Law School, recently authored a book on this issue, “Better Parties, Better Government.” In a recent article, “Burying the Incumbent Protection Racket,” Gora and co-author Peter J. Wallison explain why Congress should remove the restrictions on party contributions and coordination with candidates:
“Does this make any sense? Why should political parties, which nominate the candidates, be second-class citizens when compared to all kinds of independent groups that have now been empowered-as they should be-to participate in the political controversies of a vigorous democracy? The answer is that prohibiting parties from financing the campaigns of their own candidates is one of the last remaining incumbent protection devices. Challengers normally begin campaigns with little funding and staff, and if they’re lucky enough to raise the funds for a competitive campaign it’s often too late in the game to be effective. Party funding would start challengers off with sufficient funds to hire staff and place ads, but this is prohibited by current campaign finance laws.”
Meanwhile, the U.S. Court of Appeals for the Fifth Circuit recently heard Cao v. FEC May 25. This case is a similar challenge to party restrictions, questioning the very low coordination limits for political parties and congressional candidates.
The Center for Competitive Politics is a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights. CCP seeks to promote the political marketplace of ideas through research, litigation and advocacy.