Well, Bob Bauer still thinks the question of when to apply the major purpose test just doesn’t matter for today’s issue advocates.
Bauer can foresee a day when Jim Bopp, scanning developments in other cases, might launch “WRTL III” to attack Austin v. Michigan Chamber of Commerce and unleash independent, corporate express advocacy on federal elections. At the same time, Bauer hears that Michael Darner and I have concern for issue advocates, quite apart from Austin, yet he cannot see what Darner and I think all the fuss is about.
Unlike Darner and me, Mr. Bauer thinks the question of when the major purpose test is applied only becomes “salient” if the Austin holding were to “come under challenge.” “For if any organization,” says Bauer, “including an incorporated entity, can spend independently of candidates then all that stands between the entity and full freedom from the source restrictions is the major purpose test.”
The argument sounds ominous until one realizes it no more than the call for the preservation of Austin itself. Bauer is saying: Listen, if five members of this Court repeal Austin, our society will need the major purpose test to serve as a brake on corporations seeking to spend 51% to 100% of their treasury funds on express advocacy. The silliness of the assertion is that it gains few adherents not already inside or outside the pro-Austin camp. For those who think Austin ought to be repealed, the percentages of independent express advocacy unleashed by Austin’s repeal won’t matter. For those alarmed that Austin may be repealed, the consolation that corporate conglomerates could commit only 49% percent of their treasuries to express advocacy in a post-Austin world is cold comfort.
Enough, however, about war over Austin or the coming of WRTL III. We think the question of when the major purpose test can be applied is salient now, with Austin firmly in place. The major purpose test is unjustly affecting issue advocates, right now, and its application needs to be clarified. If the Court were to hold that applying the major purpose test to an organization that poses no threat of Court-recognized corruption (the types of “corruption” recognized in Buckley, Austin, or any other campaign finance case) violates the Constitution, the holding would protect issue advocates from unnecessary, donor-chilling, political-committee investigations.
Bauer says that any holding on major purpose in the SpeechNow case wouldn’t help organizations that run ads under WRTL II; the matters are apples and oranges. Here is Bauer’s quote: “If, then, the major purpose test falls to the SpeechNow challenge, this would benefit only the independent unincorporated association funded by individuals (like SpeechNow) and, possibly, the independent MCFL-type corporation also paying its way with only individual contributions.”
But by what conclusion would the Court’s holding regarding the application of the major purpose test benefit these groups? Let us, as Bauer says, “connect the dots.” The Court would permit these groups to benefit because it had concluded that such groups pose no threat of corruption under Buckley, Austin, or any other relevant precedent. This would mean that the Court had decided that the major purpose test is not a sufficient basis to require an organization to register as a political committee where the organization poses no threat of corruption. “Purpose,” divorced from the organization’s end product or output, is not a freestanding form of corruption. Indeed, the election bar already suspects this, and suspects it strongly.
Now, here is our point: WRTL II-type organizations also pose no threat of corruption as long as they are not coordinating, not contributing to candidates or political committees, and not running advertising not protected by WRTL II. Because they pose no threat of corruption, investigating a WRTL II-type organization to determine whether it should register as a political committee would lack a constitutional justification by the logic of this mythical opinion Bauer and I are discussing.
What’s more, in preventing political-committee investigations for organizations that pose no threat of corruption, the Court could only have concluded that it doesn’t much matter whether the organization’s written solicitations to donors said that a “portion of the funds received will be used to support or oppose the election of a clearly identified candidate.” 11 CFR 100.57. To say the terms used in the solicitation evidence “corruption,” no matter what any of the ads run by the organization ultimately looked like, would mean it is constitutional to find that the organization “corrupts” because of its manifest intent or organizational aspirations, even as its deeds, its output, carry no corruption whatsoever. This offends the First Amendment.
But Bauer says Darner and I are worried about nothing, as WRTL II is already doing the job we think needs doing in at least one more Court opinion. Says Bauer: “[W]RTL II seems to protect against the application of this rule [11 CFR 100.57] since the Court held that inquiry into purpose ends with the text of the message and seemingly cannot extend beyond it to factors such as what donors were told or understood about the organizational purpose.” By “message” we take Bauer to mean, as the Court certainly did, advertising run by the WRTL II-type organization: the “four corners” of the ad in question, with “limited reference to context.” As to Bauer’s phrase “what donors were told” we take him to include those things “donors were told” in written solicitations.
We cannot, however, take Bauer to mean that WRTL II is providing needed protection, for he filed a complaint against the American Leadership Project (ALP) on the very theory that concerns Darner and me. The “message” run by the ALP consists entirely of genuine issue ads protected by WRTL II, not express advocacy or its functional equivalent. Bauer’s complaint does not dispute this (nor, significantly, does the complaint allege that ALP is coordinating or making contributions to other political committees or candidates). If, as Bauer says in his post, WRTL II “protect[s] against application of this rule,” the Commission will not be able to find that ALP accepted “contributions” — a finding necessary to the success of Bauer’s complaint — even before the Commission will decide ALP’s “major purpose.” The definition of “political committee” requires both.
In fact, we’re pretty sure Bauer doesn’t mean it; doesn’t mean that WRTL II provides the protection we think necessary, for it was only March 4 of this year that Bauer told me WRTL II doesn’t provide protection for issue advocates facing political committee investigations:
It [the WRTL II opinion, or even the McConnell opinion on electioneering communications before it] simply does not answer the very different question about the application of the "purpose" test under section 434, the provision that determines when a group or association—of individuals—has become a "political committee."
[S]teve refuses to engage with the proposition that WRTL was a case about corporate and union independent speech, not a case like ALP’s, which is about organizational identity. WRTL’s identity was not at issue; ALP’s very much is.
I responded at the time that this argument amounts to blithely asserting that the protection afforded issue advocates under WRTL II does not extend to newly formed issue organizations. The new organization must first earn its regulatory calluses in the rough-and-tumble of a political-committee investigation and defend its “organizational identity” before WRTL II’s protections kick in. In other words, determining that the ads run are protected may now be easy, but determining the nature of the organization running only protected ads is still a speech-chilling ordeal.
So, given the landscape, Darner and I would like to see the Court say that political committee investigations — “Hand over your written solicitations, and give us everything related to your purpose” — lack a basis where a shorter inquiry would show that the organization to be investigated poses no threat of corruption, including the corruption discussed in Austin. Truth be told, we’re not too interested in the nature of the organization that elicits the holding. And we certainly don’t want a contrary holding against any organization in the near future. Issue advocates and their donors simply wouldn’t be able to withstand the implications of it.
I have said all I have to say on the topic. No matter what Mr. Bauer may say in response, I’ll stop here—lest some fool infer that my major purpose is to lionize Clinton fans like ALP at the expense of Obama for America.
