RNC asks SCOTUS to hear coordination case

Lawyers for the Republican National Committee filed a petition this week seeking review of an appellate court decision on coordination restrictions affecting parties and candidates.

The petition in the case, Cao v. Federal Election Commission, was filed Dec. 8. In September, an en banc panel of the Fifth Circuit Court of Appeals ruled against the plaintiffs, Rep. Anh “Joseph” Cao (R-La.), the Republican Party of Louisiana and the RNC. Cao and the RNC are represented by super-campaign finance litigator James Bopp, Jr. of Bopp, Coleson & Bostrom. Bopp is also an RNC vice-chairman.

The appellate court held that precedent going back to Buckley v. Valeo allowed Congress more leeway in restricting expenditures coordinated with a candidate, which are regulated as direct contributions. In Buckley, the court held that Congress could limit campaign contributions because of the possibility of quid pro quo corruption. But the Buckley Court also held that the government could not limit expenditures without violating the First Amendment.

Cao, who lost his bid for re-election in November, and the RNC want the court to invalidate a provision in campaign finance law restricting the ability of parties to effectively coordinate their expenditures with candidates.

The Fifth Circuit Court of Appeals held that the restrictions were justified by the rationale in Buckley—that Congress could regulate coordinated expenditures as contributions. The RNC argues the line between contributions and expenditures in this context is unclear, and the restrictions effectively limit much of their own speech without a sufficient anti-corruption interest (parties and candidates remain subject to federal contribution limits). As an alternative question, the RNC asked the court to decide whether coordination restrictions can apply if the party merely coordinates advertising time slot strategies with the candidate.

Under current law, parties are limited to contributing $5,000 to federal candidates and spending $42,100 in coordinated expenditures.

This issue has received bipartisan support, but in this particular case the RNC has aggressively challenged the law and the Democratic National Committee has remained relatively silent. That may change in the run-up to the 2012 campaign cycle.

In January, the Supreme Court ruled in Citizens United v. FEC that Congress could not prohibit the independent expenditures of companies, unions and advocacy groups. Citizens United restored the preeminence of the Buckley expenditure doctrine after the Court’s 1990 decision in Austin v. Michigan Chamber of Commerce muddled the issue by allowing restrictions on corporate expenditures). Many campaign finance observers note that national parties face a disadvantage in relation to independent groups in this new paradigm, and a bipartisan roster of former party lawyers, FEC commissioners and elected officials have urged a rethinking of party coordination restrictions to allow parties to more effectively assist candidates.

“This case shows that ‘independent expenditures,’ which are the only currently available avenue for a political party’s unlimited “own speech,’ do not adequately protect a party’s First Amendment right to engage in its own core political speech. And recent judicial decisions leave political parties—traditionally favored—at a disadvantage relative to corporations, unions, trade associations, special interest groups, and political action committees (‘PACs’) in their ability to engage in independent expenditures,” the RNC and Cao argue in the cert petition.

This week, the Center for Competitive Politics released an agenda focusing on policy issues Congress should address to modernize campaign finance law. Our first recommendation focused on removing party coordination restrictions:

Remove Limits on Coordinated Party Spending and Clarify the Coordination Standard
The Watergate-era coordination restrictions should be updated in light the Supreme Court’s decision in Citizens United. The odd result of past court precedent and legislation is to drive a wedge between parties and candidates. Parties can spend unlimited sums to help their candidates, but only if they do so independently of the candidates—that is, without sharing information on the candidate’s strengths and weaknesses, strategies, plans, polling data, and needs. Prior to McCain-Feingold, this dichotomy might have made some sense, in that parties could accept and spend “soft” money—funds raised outside the federal limits and source restrictions—to support candidates so long as they avoided “express advocacy.” Therefore, “soft money” could be spent independently and hard money could be spent in coordination (up to a limit) with the candidate. Since McCain-Feingold, however, national political parties have been prohibited from accepting any contribution that does not meet the limits and prohibitions of federal law. Thus, all party spending is “hard”-regulated and limited-money. There is no legitimate purpose in limiting the ability of political parties to spend unlimited “hard” money in coordination with a campaign. Eliminating the coordination barrier would allow parties and candidates to do what parties and candidates ought to do: work together to gain election, and to spend money on the races they deem most important. Prominent political attorneys, such as Democratic lawyer Marc Elias, advocated for such a change recently in testimony before the FEC.

Congress may not be willing to remove their self-imposed coordination handcuffs. But, if the Supreme Court takes up the case, political lawyers of all stripes should be able to show that restricting parties from advocating on behalf of their candidates—using limited, regulated dollars—violates the First Amendment.

The Center for Competitive Politics is now the Institute for Free Speech.