Rick Hasen asks whether, in a recent posting, I defended the Republican National Committee and Libertarian lawsuits challenging the limits on individual contributions for political party independent expenditures. He reads the post as just such a defense, while allowing for the possibility that I may disagree. My purpose was not to defend or support the actions. It was to question how the suit has been characterized by those who are unsympathetic to his goals. So I noted that the suit does not exploit a “loophole”; it is not a “soft money” lawsuit; and the RNC has not previously made this claim.

Then there is this question: what about the suits requires a “defense”?  Political committees can spend independently without limitation, and they can also accept contributions without limit to fund these expenditures. The RNC and Libertarian committees are simply saying: “us, too.” These party organizations, looking to regain a measure of competitive parity with super PACs, are acting rationally in making this claim. If Rick has an objection, one that requires a “defense,” the fault is more properly laid at the door of the courts, which have presented these party committees with a reasonable, straightforward argument for the relief they are seeking.

Another complaint, or perhaps on Rick’s part only an observation, is that I have circled back a full 360° to my position on these issues before the current Administration. Rick presumably has in mind the DNC’s participation in the defense against an RNC challenge to the McCain-Feingold national party soft-money prohibitions. RNC v. FEC, 698 F. Supp. 2d 150 (2010), aff’d, 130 S. Ct. 3544 (2010). But that was not an independent spending case like the current one, and the RNC did not make any claim to that effect in any of its pleadings to the court. Before the three-judge District Court, the RNC argued that only in funding activities that were “unambiguously related” to a federal candidate could the Committee be subject to the limits imposed by McCain-Feingold. By the time the case moved to the Supreme Court, Citizens United had been decided and the RNC contended that the limits could no longer be supported with reference to the power of soft money to facilitate access to officeholders or inspire their gratitude. In neither phase of the case did the RNC assert that it was relying on the right to make independent expenditures under Colorado Republican Federal Campaign Committee v. FEC.

So never have I, as counsel or in commentary, taken a position for or against the theory the RNC and the Libertarians are now advancing. Rick, whom I much respect and admire, is right about many things: on this, he is mistaken.

The lawsuit the RNC (and the Libertarians) have filed follows naturally from the case law in recent years, and should occasion no shock or require from the committees no strenuous “defense.” These party committees are hoping that favorable judicial rulings will enable them to improve on their deteriorating competitive position within a “system” increasingly dominated by non-party political organizations, including but not limited to super PACs.

A further point, not directed to Rick, but to other commentary on this case since it was filed:

The presentation of the these lawsuits in ominous terms—as opening new loopholes or as a quest to overturn the “soft money” ban—serves the purpose of effective public messaging. The history of campaign finance offers example after example of this race to slap labels on cases and positions: this position is “pro-reform” and that one is “anti-reform”; one case invites “corruption” while another manufactures “loopholes”; one group or the other is engaging in “circumvention.” It is a sound public communications strategy, and more often than not it achieves its objectives in guiding editorial boards and other elite opinion, and in spooking elected officials.

The point of my posting was to note that the game is once more underway in response to these new suits, and to show how it is being played.


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