Judge Robertson's decision against SpeechNow will not in the long run have done this organization much harm, and it may have done it a favor.  He did not make the strongest case for rejecting SpeechNow's claim:  his opinion highlighted that case's difficulties, particularly the ones that the Supreme Court—speaking here of the majority deciding cases like Davis—may pounce on.  SpeechNow has lost, but it has not lost as much as it could have, since the damage was limited to the outcome and is not a product of the power of Judge Robertson's argument. 

      The Robertson opinion opens on a note of skepticism:  this is a "test case" (SpeechNow.org v. FEC, slip op at 2), he reminds the reader, and the requirements attacked by SpeechNow are "nothing new," having "been on the books for decades" (id. at 2-3), and that SpeechNow is "a group that has raised no money and exists only on paper" (id. at 12).  Not to make too much of this, but this is a little misleading:  the issue that SpeechNow raises is one that that been open, pending resolution, for a period of time.  The question, of course, is whether contributions to a committee that makes only independent expenditures can, unlike those expenditures, be limited.  The case that SpeechNow is making is indeed "new":  it is not rehashing an old case but bringing a fresh one on an unresolved issue.

     Then the Robertson opinion changes direction and, far from the suggestion that there is nothing "new" here, it analyzes the case in the context of developments in campaign finance since the McConnell case was decided.  He chooses here, unwisely, to link the SpeechNow case to the controversies in 2004 and beyond about "527s."  The result is a highly scrambled account of what is at issue. 

     For example, Robertson discusses possible connections between political parties and 527s—he adopts for 527s the term "shadow party' groups"—and seems to link this expressly to the kind of organization that he takes SpeechNow to be.  So he writes:  "In practical terms, the remedy that plaintiffs seek is a declaration that the First Amendment prevents Congress from imposing any limit on contributions to the kind of nominally independent 'shadow party' groups that have gained prominence in the wake of BCRA."  Id. at 12.  He does not explain why SpeechNow is properly presumed to be such an organization, a "nominally independent 'shadow party' group"; and, in fact, whether it is or it is not is not before the Court.  Robertson decides to locate SpeechNow within a controversy in which it has had no part, and in doing so, he tries to lighten his persuasive burden in arguing the constitutional merits of its claim.  In effect, he moves the argument from the activity to the actor, and he implies that the actor is somewhat disreputable and its position not properly given much weight.  A large share of the Robertson opinion is organized around this strategy.

     Once Robertson engages directly with the constitutional issue, the treatment rests on slippery ground.  Robertson has to address the contention that if independent expenditures are free from limits because they do not present the danger of corruption, it is not clear why contributions made to support only that activity may be limited.  Robertson first questions whether the Buckley rationale will long stand:  "The Supreme Court has never held that, by definition, independent expenditures pose no threat of corruption."  Id. at 17.  The Court did, however, define them just that way, leaving open the possibility that it might one day conclude otherwise.  That day has not yet arrived, and there is no evidence that it is on the horizon.  Robertson establishes little here except that he is not keen on Buckley, which remains, however he may dislike it, the framework within which he must operate.

     Robertson turns then to an argument that is, as the saying goes, all over the lot.  He argues, first, that contributions to an independent expenditure committee may not produce "direct corruption," but it can corrupt more subtly, resulting in "sale of access, that can occur even when contributions are made to entities that are legally independent of candidates' own campaign organizations."  Id. at 18.  The case on which he relies is McConnell, and the examples he gives are those of parties, both national and state (id. at 18-19), but these are the types of organizations that the Court in McConnell, on the record before, found not to be generally "independent" of candidate campaigns.  SpeechNow's whole point is that it is different—organized to be independent and functioning with that independence.

     Finally, Robertson argues the danger of "circumvention," and once again the case is McConnell where he finds his example:  the restrictions the McConnell Court upheld on the state and local candidate financing of public communications that support or oppose particular federal candidates.  Congress predicting in enacting BCRA that soft money, banned at the national level, could flow to the state and local level to parties and to state and local candidates, and, Robertson writes, "these predictive judgments apply with equal force to Congress' decision to prohibit political committees, even those that make only independent expenditures, from receiving annual contributions larger than $5,000."  Id. at 19.  The question this analysis raises is the basis of these "predictive judgments," and specifically what supports application to "independent" committees of reasoning based on the relationship of federal candidates to their own parties, including fellow candidates and officeholders within the same party.

      To answer this question, Robertson returns to the point from which he started, to 527s, and the "'close ties' to federal parties and candidates that 527s might maintain and were alleged in 2004 to have had.  "Clearly, legally independent 527s groups can and do bear the seals of approval from political parties."  Id. at 22.  And "neither does the First Amendment require Congress to ignore what its members surely know—that an organization may be legally independent under FEC rules while nonetheless functioning as a fully integrated arm of a major political party."  Id.

      The Roberston opinion seems to hold that there is, for all practical purposes, no such thing as true "independence."  Either Buckley will fall on this point, or Congress will read it out of existence by concluding that any independent effort is too strong a magnet for questionable "ties" to qualify as truly independent.  Robertson could not have pushed the point farther, with less analytical rigor, and this not the sort of showing that will help the government's cause in the Supreme Court.

Bob Bauer