No one arguing about McCutcheon seems to question  the importance of healthy parties.  They merely disagree about what it means for parties to be healthy.  And from there, critics of the decision and of liberalized party financing move to the claim that legal restrictions on parties will strengthen them, or leave them in in no worse of a position than before. Parties are “defined down,” allowing for the anomalous conclusion that limited access to resources is the best thing for them, even if necessary to prevent their misuse to achieve corrupt purposes.  Making matters worse are unwieldy conceptions embedded in the Buckley constitutional framework that narrowly limit the ways that party activity—and spending—can be pictured.

The 1996 Colorado Republican cases show the confusion into which the discussion can fall, at the expense of parties. The plurality, in the opinion by Justice Breyer, found that parties, while important to their candidates and vice versa, are capable of acting independently of them. Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 615-16 (2003).  If independent, the parties may spend freely to support their candidates; without that independence, when spending in league with their candidates, they may not. Here the unique characteristics of parties make no difference whatsoever. Constitutional law distinguishes between contributions and expenditures, and to the extent that the parties were making expenditures of the independent variety, they occupied the same First Amendment position as any other independent entity.

Justice Kennedy, concurring in the judgment but much in disagreement with Breyer’s doctrinal position, suggested that the parties were different from other political organizations.  They could never be truly independent: their speech was inseparable from the speech of their candidates, and because candidates could not be limited in what they spend to advocate for their election, parties as their alter egos must also be protected from spending restrictions.  Id. at 630.  In this respect, Kennedy could indulge his distaste for the Buckley framework: the contribution/expenditure framework was inapposite.

Neither Breyer nor Kennedy put forward an adequate account of the way parties are structured or actually function. In one respect parties never maintain full independence from their candidates. Nor, however, are they effectively indistinguishable from them. A strong political party nurtures the closest possible relationship to candidates but retains an independent institutional identity.  It represents a membership and a program in ways that any one of its candidates, or a caucus of them, does not. At times faithfully representing candidates’ views and directly serving their interests, at others, the parties—the strongest ones–may seek to influence or may even repudiate those views and may have to act contrary to particular candidate preference or expressed interests.  The spending of parties also flows well outside neatly separated boundaries of contributions and expenditures, and even the further breaking down of expenditures into this or that kind—operating expenditure, independent expenditure, coordinated expenditure—serves only to capture in rough and inexact terms how and why parties may use their resources.

When McConnell came along, the Court chose the Kennedy side of the argument but made use of it for the altogether different purpose, from which he vigorously dissented, of sustaining far reaching “soft money” and other limits on parties. The identity of interest between party and candidate meant that parties were the willing, empty vessels for the corruption of candidates, and so party financing was properly, and aggressively, regulated.  But since then, given the general belief that parties are good and should remain vibrant, supporters of this reform—and critics today of McCutcheon—deny that parties have suffered much from the 2002 reform.

In a reprise of the argument, Eliza Newlin Carney argues that parties might have spent their soft money when they had it for truly useful, membership-based programs, like get-out-the-vote activity.  But they chose to run ads, costing millions, and they collected the money for this activity from donors who expected something in return. In effect, their cries of mistreatment ring hollow.  Newlin Carney writes: “If the parties had really spent their unrestricted money on get-out-the-vote activities and party building before the McCain-Feingold law took effect, soft money nostalgia might be more compelling.”

Something is wrong with the analysis here.  Of course, the parties did spend soft money for get-out-the-vote programs: the national parties dispatched massive sums of this money in pre-2002 presidential cycles to state parties for “coordinated campaigns”—the party field programs that include get-out-the-vote activity.  McCain-Feingold’s authors were no less suspicious of these activities than they were of party ad campaigns and severely restricted soft sources of payment for them.  If parties were committed to field activity, McCain-Feingold make it all the harder and hastened the day, now arriving, when this activity would increasingly be located outside the party structure.

But there is also the question of what assumptions lie behind the special distrust reserved for ad campaigns.  Here is another example of where McCain-Feingold ran on mixed fuel, some part of which consisted of a strong dislike for “negative” ads.  It was the whole package of negative ads, the millions spent on them, and donors in search of influence that animated the 2002 attack on parties.  The rules enacted cut party access to resources across the board, for a host of activities, including activities in the field to mobilize voters.

Now the suggestion is that political parties have done just fine—depending, of course, on the definition of parties that is adopted.  And the one adopted is often the one that best suits the regulatory preference of the analyst.  This is how parties are “defined down,” squeezed between reform politics and a limiting constitutional vocabulary.