As noted here Wednesday, the Minnesota Campaign Finance and Public Disclosure Board is stymied by the question of whether an independent committee can have contact with a candidate and remain “independent” and able to make unlimited expenditures on the candidate’s behalf. The anonymous candidate seeking an opinion from the Board would like to raise money for a committee that intends to help him or her, later, on an “independent” basis. Under federal law, and subject to conditions, this is possible if the candidate has no say in how the money is spent. Reform critics think this result is indefensible. Their view of independence is that it requires complete separation of the candidate from the committee.

Two campaign finance experts wrote to me about the posting, one with a question and the other with an observation. The question was: where did the Supreme Court express itself on the scope of independence? The posting relied on Buckley v. Valeo, 424 U.S. 1 (1976), where the Court established the right to spend independently without limit. Under the theory of that case, independence was a function of the candidate’s involvement or noninvolvement in the expenditure of the funds. Nothing in that opinion suggested that a candidate was barred from any contact with an independent committee, and it follows that a candidate can help a committee raise money without endangering its independence, provided that the spender alone determines the use of the funds.

The observation came from Jan Baran, and he has given permission to have it presented here. Baran agrees that contact between the candidate and committee is not sufficient to destroy “independence,” and he points out that the 1996 Colorado Republican case that he successfully litigated is additional strong authority for that position. There, the court concluded that political parties could make independent expenditures on behalf of their own candidates, fully understanding that parties and candidates necessarily have regular, ongoing, deep contacts. And these contacts include, of course, fundraising activities; the parties depend on their candidates for help in raising money and vice versa.

Jan refers to this passage in Justice Kennedy’s opinion:

The Government… argued below, and the lower courts accepted, that the expenditure in this case should be treated under those precedents, not as an “independent expenditure,” but rather as a “coordinated expenditure,” which those cases have treated as “contributions,” and which those cases have held Congress may constitutionally regulate. While the District Court found that the expenditure in this case was “coordinated,” it did not do so based on any factual finding that the Party had consulted with any candidate in the making or planning of the advertising campaign in question. Instead, the District Court accepted the Government’s argument that all party expenditures should be treated as if they had been coordinated as a matter of law, “[b]ased on Supreme Court precedent and the Commission’s interpretation of the statute.” …The question, instead, is whether the Court of Appeals erred as a legal matter in accepting the Government’s conclusive presumption that all party expenditures are “coordinated.” We believe it did.

Colorado Republican Fed. Campaign Comm. v. F.E.C., 518 U.S. 604, 619 (1996) (internal citations omitted).

In other words, the issue for purposes of the limits is whether a specific expenditure is independent—not whether the independent committee operates generally without candidate involvement or support. Baran notes that Colorado Republican was decided on a 7-2 vote.

Jan offers more generally this comment:

Reformers seem to argue that “total independence” legally requires no association between a candidate and an expender. This seems very odd after the Supreme Court repeatedly and aggressively upheld the spending rights of a political party, an entity of which a candidate is a member and for which he raises money and on whose behalf his supporters and staff oftentimes work. As you state, independence is required in the spending and not in the affiliation between a candidate and an organization.

The point is well-taken. Nothing in the original Buckley theory or in the Court’s application of it in Colorado Republican supports the argument that candidates and independent committees can have no contact. Nor does either case support the argument that candidates cannot raise funds for committees planning to make independent expenditures on their behalf.

But the argument to the contrary continues to be made. It plays off the gap between constitutional theory and more rough-and-ready, popular conceptions of what “independent” means. It does what it can with the Court’s reference to the necessity of “total” independence, but to do so, it ignores the distinction between a committee that makes “totally” independent expenditures and one that operates “totally” without candidate involvement or support. Perhaps more to the point, this critique of independent activity suggests that independent committees are violating the rules in their regulated relationships to candidates when, in fact, its complaint is with Buckley.