September 18, 2009
The New DC Circuit Opinion in Emily's List, Citizens United, and the Role of Political Parties
At the oral argument in the Citizens United case last week, Justice Breyer asked the following question of Ted Olson:
It was an important question to ask, as the Court considers striking down limits on corporate and union spending. And today the stakes got even higher. In today's Emily's List decision of a D.C. Circuit panel, Judge Kavanaugh, for 2 of 3 judges on the case, enthusiastically follows the Supreme Court's deregulatory lead in crafting an opinion that essentially will allow individuals (and, I predict, eventually corporations and unions) to make unlimited contributions to political committees to fund independent expenditure campaigns. (The main reason we've seen the rise of 527s is that political committees, by statute, cannot accept more than $5,000 from individuals (and nothing from corporations and unions) to fund their federal candidate advocacy. If this ruling stands, there won't be much need for 527s anymore.).
If this opinion stands, coupled with an overruling of Austin and McConnell in Citizens United, political parties will be at a serious disadvantage. The Emily's List Court recognizes this point, and its response is--predictably---the need for more deregulation:
If eliminating this perceived asymmetry is deemed necessary, the constitutionally permitted legislative solution,as the Court stated in an analogous situation in Davis, is "to raise or eliminate" limits on contributions to parties or candidates. 128 S. Ct. at 2774. But it is not permissible, at least under current Supreme Court precedents, to remove the incongruity by placing these limits on spending by or donations to non-profits.
This kind of situation, where parties are left back, is not going to stand before Congress, which will then relax the soft money rules. This is why I've recently referred to the "campaign finance end-game" that comes from the Supreme Court's unraveling of campaign finance law:
We are moving toward a deregulated federal campaign finance system, where money flows freely and perhaps only disclosure laws remain. It is a world in which those with more money use their considerable funds to elect candidates of their choice and to have disproportionate influence over public policy. The unlevel playing field awaits.
As with the reargument order in Citizens United, the decision today was an act of anti-avoidance. Judge Brown in her Emily's List concurrence notes that the issue can be disposed of without reaching the constitutional questions. The main opinion, however, shows a real desire to move this change in the law quickly, not incrementally. (For true campaign finance junkies, the most important part of the majority opinion is footnote 13, which in turn parses McConnell's footnote 48, about which I written extensively).
Posted by Rick Hasen at September 18, 2009 10:24 AM