Louisiana is arguing with the help of the indefatigable Jim Bopp that McCain-Feingold cannot limit “federal election activities”, such as GOTV and voter registration, that state and local parties conduct independently, without coordinating with their candidates. Democracy 21, the Campaign Legal Center and Public Citizen reply in a brief filed as amici that this claim is clearly foreclosed by existing precedent: the soft money limits on state parties under McCain-Feingold are contribution limits, not spending limits, and there is no protection gained from claiming to conduct independently the activities paid with these contributions.

The litigating team representing these leading reform organizations is top-notch, and so it is not a surprise in reading their brief that they do a fine job with the materials at hand. But one also sees that there is a problem—not with the advocacy, but with the state of the law.

First, the argument depends on the claim that it does not matter whether a state or local party coordinated its spending with a candidate. There still remains the potential that the candidate would “benefit” from the expenditure, and the risk is of “apparent” if not actual corruption.  A contributor who provided the funds that proved in the end useful to the candidate could collect on the candidate’s gratitude.  Even where the party is acting independently, there is everywhere dangerous possibility – – a possible benefit to the candidate from the spending, the possible opportunity for illicit gratitude to the donors, and, at a minimum, the possibility of an “appearance” problem.

To strengthen the point that party “independence” does not mitigate these risks, the argument calls on the Supreme Court’s proposition in McConnell that parties and candidates cannot ever be really independent. This is because they have a “close and unique relationship.”  But at the same time, it is not a question of parties corrupting candidates with donor money.  Instead, amici write, the donors are more distantly risking corruption or its appearance by “contributing to entities that are part of a common political enterprise with the candidates.” Brief of Amicus Curiae Public Citizen, Inc., Democracy 21, and Campaign Legal Center In Opposition to Plaintiff’s Motion for Summary Judgment And in Support of Defendant’s Cross Motion for Summary Judgment, Republican Party of Louisiana v. Federal Election Commission (March 25, 2016) at 4.

This is all very vague and contingent, and part of the difficulty is that the same Court in McConnell insisting that parties and candidates are joined at the hip has held in Colorado Republican Federal Campaign Committee that parties can in fact operate independently from candidates(and spend without limit on their behalf).

So how in this respect are parties different from “outside groups” also operating independently of candidates?  The reformers answer that not all independent spending is the same.  “One of the reasons that a party’s independence by itself may pose a lesser risk of corruption than spending by outside individuals or groups is that the party and its candidates already have a close relationship and conjunction of interests.” Id. at 13-14.   It is not clear what this means—perhaps that the party and the candidate are so close that a party’s independent spending is not materially different from its candidates’ own spending, and candidates cannot corrupt themselves?

There is additional strain produced by the nature of the activity at issue in the Louisiana case—“federal election activities.”   Parties engaged in these activities are engaging voter registration, get-the-out-the vote drives, and other “generic” programs that do not involve express advocacy for or against any particular candidate.  These seem like good things for parties to do. There is, of course, the further factor that Louisiana is positing that a party might conduct these activities on its own, not coordinating them with any candidate: this, too, could help the party maintain and perhaps expand a distinctive institutional role.

In part for these reasons, the recent Brookings report by Ray La Raja and Jonathan Rauch brings into question the soundness of these very restrictions on the state and local parties.  Rauch and La Raja note that they have put the parties at a major disadvantage in competing with “outside groups,” like Super PACs, for funds and electoral clout.  These outside operations have full run of the independence argument, and it is clear that any number of them have their own “close and unique relationship” with one or more of the candidates they support.

So assume that this rickety constitutional structure with its complex and sometimes mystifying logic distinguishing between the parties and other groups survives for a while longer.  A fair question is whether it is wise to stick with it, even if it can be kept in place and its defense litigated for years to come.

Anti-corruption jurisprudence cannot carry the weight placed on it in a case like this, where it is used to support these sorts of limit on independent state and local party activity.  This is where the political equality proponents of regulation have the upper hand: agree or disagree with it, their position is clearer, more coherent.

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