Following up on this post from yesterday on Dan Ortiz’s comments submitted to the FEC, Dan replies here (on the election law listserv).
Dan’s post is very helpful in clarifying where we agree and disagree. I think Dan has made some good points on the weight of the individual burdens and, if those opposing unlimited contributions to truly independent expenditure committees in fact win in court, I think it will be on this basis. He is right that my concern is with the associational interest, but I agree that language from the Supreme Court’s New Deference Quartet (Shrink Missouri, Colorado II, Beaumont, and McConnell) only adds support to his position.
But I think that to the extent that the state needs to come up with a strong state interest to justify such a limit, it cannot do so unless the Supreme Court is willing to rethink its fundamental distinction between contributions and expenditures in Buckley.
Both of Dan’s arguments on state interests that could justify limiting contributions to fund independent expenditures could justify limits on independent expenditures themselves. Here is the nub of Dan’s two interests:
(1) “corporations, unions, and individuals contributing money to [these committees]…are in some sense circumventing soft money limitations, especially if they hope for and achieve the kind of access and influence the Court through soft money got them.”
(2)”To the extent [these committees] because of their size and efficiencies can better monitor, reward, and punish elected officials there is some reason to think that those officials will become beholden to them.”
On Dan’s first point, I don’t think “especially” is correct. If the soft money ban was put in place to prevent parties from selling access, these independent expenditure committees would be “circumventing” the law only if they were trying to achieve access and influence.
How would a group achieve “access and influence” through truly independent expenditures, or, looking at Dan’s second point, how could politicians become “beholden” to committees making independent expenditures? The idea must be that independent expenditures can create this relationship. That’s not a ridiculous idea at all, but it is an idea that was rejected explicitly in Buckley (footnote omitted):
- Second, quite apart from the shortcomings of