Yesterday in this post I linked to Dan Ortiz’s comments that have been submitted by Democracy 21, the Campaign Legal Center, and the Center for Responsive Politics in support of regulating 527s as political committees in the upcoming FEC rulemaking. (These three groups, by the way, don’t think the FEC should be reaching the constitutional questions that Dan’s memo addresses; see here. I think that this memo is their backup in case the FEC reaches the issue, or their opening salvo if and when this question gets to court.)
Dan’s memo is the most thoughtful defense of regulating the constitutionality of independent expenditure committees that I have seen; but I remain unconvinced. In fact, for reasons I set forth below, I take exactly the position of the Brennan Center on this point (see their comments here), comments I first read yesterday on the CLC website.

Just to reorient those to the issue, here is the question: under Buckley v. Valeo, it is constitutional to limit contributions by individuals to candidates, but it is unconstitutional to limit independent expenditures by individuals. (Austin v. Michigan Chamber of Commerce and now McConnell v. Federal Election Commission allow limits on independent expenditures and certain other “electioneering communications” by corporations and unions). Thus, George Soros can go out tomorrow and spend $10 million on advertisements bashing George Bush, so long as he does so independently (i.e., without any coordination with any other candidate, party, or political committee). But Soros doesn’t want to spend his money independently to bash Bush; he wants to give it to a few organizations (such as Moveon.org’s 527 organization, and Americans Coming Together) that are pretty saavy about their media spending bashing Bush. These groups are organized under section 527 of the tax code, which means they must have as a purpose the influencing of local, state or federal elections.
Part of what is at stake in tomorrow’s FEC hearing is whether these 527s should be regulated as “political committees.” This is a thorny statutory question, turning in part on how to tell whether these groups have a “major purpose” of influencing federal elections. I’m willing to concede that under a well-drawn test, these groups should be considered political committees—but the issue is far from clear.
Federal law provides that political committees may not accept contributions from individuals in excess of $5,000. Soros has given these 527s considerably more than $5,000. Are these groups, assuming they are political committees, exceeding this limitation? Yes, but the limitation might be unconstitutional. These groups are making only independent expenditures, not coordinating with any candidates or party. If it is unconstitutional to limit independent spending by Soros directly, why would it be constitutional to limit contributions to a group that makes only independent expenditures? The Supreme Court has not directly addressed the issue, but in California Medical Association v. FEC, 453 U.S. 182 (1981), the Court upheld a limit a limit on contributions to political committees that make contributions to candidates. There was no majority opinion. In dictum in a concurring opinion, Justice Blackmun noted that a different result would follow if the groups made only independent expenditures because they post no threat of corrupting candidates.
As I read it, Dan Ortiz’s comments make a three-pronged attack on the constitutional question:
1. Blackmun’s statement in CMA was only dicta, and in any case if you look at what the Court did, rather than what Justice Blackmun said, it in fact upheld contribution limits applied to expenditures made by CMA that were not contributions to candidates.
2. The Court in McConnell in footnote 48 recognized that the First Amendment allows regulating contributions to fund “express advocacy and numerous other noncoordinated expenditures,” citing CMA and that portion of Buckley upholding an aggregate contribution limit. Independent expenditure political committees, like parties, may be regulated because they will likely be used to benefit candidates directly. So these committees are unlike the “political talk show hosts” and “newspaper editors” that the McConnell Court in footnote 51 said could not be regulated “solely” for the benefit they supply to federal candidates.
3. Campaign contributions impose only a marginal restriction on free speech, because Soros still gets the symbolic act of contributing $5,000 to Move.on’s 527.
Points 1 and 3 seem somewhat tangential to the argument. At most under Dan’s reading of CMA, we can ignore it. Certainly the case cannot be cited as authority on an issue it did not purport to decide. Point 3 I think misses the associational issue that comes up not for Soros, but for those who have more than $5,000 to give, but not enough as Soros to be able to engage in effective advocacy. (Thanks to Roy Schotland for this point in a personal communication.)
So the issue, as I’ve always thought, comes down to what the Court did in McConnell‘s footnotes 48 and 51. It seems there are two ways to read the footnotes consistent with a constitutional argument in favor of regulating independent expenditure political committees. First, one can argue that the footnotes constitute a sub silentio overruling of Buckley‘s holding that independent expenditures may not be limited because there is not enough evidence of a link between independent expenditures and a risk of corrupting candidates. It is hard for me to believe that the Court worked such a major change in the law in such an obscure way. Would Justice O’Connor really have signed onto (or written?) that? Second, one can argue that the footnotes recognize that only certain independent expenditures (and the contributions that fund them) may be limited: those where there is not only a great potential benefit to candidates but also a special danger of corruption. This special danger of corruption arises in the party context because, as the Court noted in McConnell, parties are uniquely situated to serve as conduits for corruption.
Dan seems to rely upon this second reading, suggesting that these independent 527s are more like political parties than like the “newspaper editors” and “talk show hosts” that cannot be limited in contributions to them (not that they take contributions, but that’s what the Supreme Court said).
Here is where Dan’s argument is at its weakest. He writes:

Independent expenditure committees pose two special dangers long recognized by the Court htat make them more like parties than like “political talk show hosts or newspaper editors.” First, ….[i]f independent expenditure committees are exempted from coverage as political committees, they will become the primary means for donors to circumvent FECA’s new soft money provisions. Donors seeking to influence federal officeholders…will contribute instead to independent expenditure commitees for exactly the same uses….
Second, independent expendidure commitees share with parties–and not with talk show hosts and editors—a central characteristic that increases the corruptive potential of contributions made to them. As the Supreme Court has explained, political “parties’ capacity to concentrate power to elect is the very capacity that apparently opens them to explotiation as channels for circumventing spending limits binding on other political players […” Quoting Colorado II.] Independent expendiditure committees, like parties and unlike talk show hosts hand wealthy individuals, have this same capacity to corrupt.”

On the first point, Dan simply ignores the fact that these groups must be truly independent of the parties and the candidates in a way that the parties never can be. If Dan thinks that independence is in fact impossible, then, again, the entire Buckley edifice is falling. The question is not, as Dan puts it, whether donors will put money to “exactly the same uses,” but whether the same sale of access to elected officials is possible. I don’t see how it is, unless we are willing to find that access with all independent expenditures.
On Dan’s second point, there are two problems. First, this is just a recapitulation of the first argument: because these groups have the power to elect, they can provide an avenue for the sale of access. But again that’s not possible. Second, to the extent Dan is arguing that the “power to elect” allows for regulation, then of course we could regulate newspaper editors and political talk show hosts as well.
In short, unless we are willing to abandon Buckley‘s stand on the capacity of independent expenditures to corrupt candidates, I don’t see the constiutitonal argument succeeding. Thus, the task for the lower courts will be to read McConnell‘s footnotes 48 and 51 and make a prediction if that is what the Court is next going to do. This latter point reminds me of the Ninth Circuit’s opinion in Montana Chamber of Commerce v. Argenbright, 226 F.3d 1049 (9th Cir. 2000), cert. denied 534 U.S. 817 (2001). The case involved a Montana initiative preventing corporations from making contributions or expenditures in connection with ballot campaigns. Even though the law seemed to run afoul of Bellotti, the state argued that Austin‘s new “corruption” rationale in effect overruled Bellotti. The Ninth Circuit wrote: “Even if Austin plausibly may be read as undermining Bellotti, this is for the Supreme Court, not us to say.