Earlier in the week, I suggested reasons why the Center for Competitive Politics would so energetically call attention to the differences between Leake and SpeechNow, both cases raising the question of whether contributions to independent expenditure efforts could be limited.  Steve Hoersting and Michael Darner have pointed to the “major purpose” test, by which political committee status is in part determined and which only the SpeechNow case presents for review. And this test disturbs them, though, as I later noted in an update to my posting, not for reasons I had first thought.  

     In a a discussion on the list serv, cited here with his permission, Steve Hoersting  reaffirms that his concern is only for issue advocacy organizations, engaged in the advocacy protected by WRTL II.   He fears that an organization raising money from its donors with the express commitment to influence an election invites an inquiry into its purpose.  In yesterday’s listsev exchange, it is assumed (specifically by Alex DeMots) that Hoersting anticipates application of an FEC rule, 11 C.F.R. § 100.57, that does indeed turn on representations made to donors.

     Despite all this, it remains unclear what troubles CCP.  DeMots argues that donor understanding is irrelevant under § 100.57, and he is right: the rule focuses on what the organization says, not what the donor "understands," about its purpose.  Moreover,  WRTL II seems to protect against the application of this rule, 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. See 11 C.F.R. § 114.5(a)-(e).  This is at least what Hoersting believes, since he specifically states that a "political committee investigation at the FEC uses the same 'rough and tumble of factors' into 'intent'...as the the WRTL II Court said are prohibited in determining th nature of the advertising."

      And if keeping WRTL organizations out of harm’s way is what CCP cares about, SpeechNow is limited in interest.  For that is a case about an organization avowing an election-related purpose—avowing that indeed the advocacy of candidates’ election or defeat is its only purpose—and therefore carrying on well outside the zone of pure issue advocacy.  It seems that in worrying about effect of SpeechNow on WRTL II organizations, apples and oranges are getting thrown together.

     This is why it was possible to make the mistake of assuming that CCP—having spiced its discussion with corporate spending cases like Bellotti and WRTL II—had its eyes on a different function of the "major purpose" test, which is to enforce the source restrictions on the use of corporate (and union) funds.  MCFL explained how the test worked that way.  An organization that qualified to make corporate independent expenditures could only make so many, before the volume of this spending might trigger a “major purpose” inquiry, subject it to political committee status, and end further expenditures from any prohibited source.

     Although a corporation, MCFL accepted only individual funds, and the Court in MCFL held that the independent expenditure right was not  available for the use of business corporation or union money.  This was settled by Austin v. Michigan Chamber of Commerce (494 U.S. 652 (1990)), which denied the independent spending right to nonprofits funded in part with profit-making corporate funds.  If, then, the major purpose test falls to the SpeechNow challenge, this would benefit only the independent unincorporated assocation funded by individuals (like SpeechNow) and, possibly, the independent MCFL-type corporation also paying its way with only individual contributions. 

     Maybe, or maybe not,  depending on the future of Austin.  The Austin Court was split, and the dissent vigorously disputed the proposition that corporate independent spending was not constitutionally protected.  In their ardently held view, corporate speech, if not coordinated with candidates, was no more corrupting than any other independent speech and could not be silenced.  Justice Scalia thought so, and so did Justice Kennedy.  It is had to imagine a different position taken by Chief Justice Roberts, Justices Alito and Justice Thomas.  Added together—a majority. 

     If the Austin holding may come under challenge—WRTL III?—then the question of how the major purpose test is applied becomes very salient.  For if any organization, 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.  It can make independent expenditures, only not too many—not enough to bring into question its purpose.  But remove the limitation on purpose—let "independence" do the work of averting corruption—and any limitation on this spending from any source vanishes.

     This is how SpeechNow could be seen as part stalking horse.  Important on its own terms, as a committee funded only by individuals, it may, if successful in on the major purpose challenge, clear a path for the WRTLs or State Chambers of Commerce of the future. 

     This is apparently not what CCP had in mind, but others may, as they make their plans for a transformed map of campaign finance regulation.  This is one way the dots could connect, giving Jim Bopp (WRTL) a considerable stake in the work of David Keating (SpeechNow).

Bob Bauer