In the main, I am not surprised that the Court upheld the soft money provisions of the law. As I had argued in this Election Law Journal article, most of the constitutional issues surrounding soft money were in effect already resolved in 2001 when the Supreme Court decided the Colorado Republican II case.
There are two noteworthy aspects of the majority opinion’s analysis on this point that stand out to me. First, coming out of oral argument, I was convinced that a number of Justices who ended up in the majority would have had problems with the provision of the soft money limits to state and local political parties. The concern was not a “federalism” concern. (The majority gave that federalism concern, pushed so heavily by Ken Starr at oral argument, the back of its hand.) It was that the concerns about corruption and the appearance of corruption were too attenuated to the state and local level, especially given how the law might interfere with state and local politics. (The briefs of the California parties really played this point up, and both Starr and Burchfield stressed the point at oral argument.) To respond, the majority leans heavily on the anti-circumvention rationale (that state and local parties would replace national parties in the sale of access to federal candidates and elected officials) and notes the possibility of an as-applied challenge. “If indeed state or local parties can make” a showing that the provision prevents the parties’ ability to engage in effective advocacy, an as-applied challenge might be possible. That “effective advocacy” standard is borrowed from Shrink Missouri, and is really a toothless standard. See Richard L. Hasen, Shrink Missouri, Campaign Finance, and “The Thing That Wouldn’t Leave,” 17 Constitutional Commentary 483 (2000).
The other somewhat surprising aspect here is the footnoted dismissal of the argument that the soft money’s definition of “federal election activity” was too vague. (Maj. opn. at 62 n.64.) The definition used words like “promote,” “oppose,” “attack” and “support.” The court’s quick answer was that people of ordinary intelligence know what that means, and, in any case, someone who does not know can go get an advisory opinion from the FEC on this question. Blog readers may recall that this was precisely the approach urged by Judge Leon in the three-judge court below, and it was subject to great ridicule by campaign finance lawyers as unworkable. I think that this footnote is going to be the source of great contention in the months and years ahead.