As this blog has covered, one of the big issues facing the FEC (and probably soon thereafter, the courts) is the extent to which so-called “527 organizations” may be regulated under the FECA. One of the key questions will be whether such organizations that take only individual donations to engage in electioneering communications soon before an election may be subject to FECA rules limiting donations to $5,000 from individuals and non-incorporated associations. So far, analyses have suggested that such groups with a “major purpose” of influencing the outcome of federal elections may be regulated as “political committees” under the FECA and therefore subject to the $5,000 cap. That means not only no huge contributions from George Soros or other billionaires but also no corporate or union money.
Is such a requirement constitutional for a group that does not coordinate with candidates or make any contributions to candidates? Before McConnell, there was a strong argument that the answer was no under a 1981 Supreme Court case, California Medical Association v. FEC. In CMA, the Court upheld the $5,000 requirement as to political committees that made campaign contributions. There was no majority opinion. The crucial fifth vote came from Justice Blackmun, who said it would not be constitutional to limit contributions to such groups if they made only independent expenditures.
In McConnell‘s footnote 48, however, the Court stated that the statute at issue in CMA was justified not only to prevent