In Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996) (Colorado Republican I), the Supreme Court held that parties have a constitutional right to spend money on campaigns independent of their candidates. In Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2000) (Colorado Republican II), the Supreme Court held that parties may be limited in the amount they can spend promoting their candidates in coordination with their candidates.
As a result the political parties have set up separate (and supposedly independent) units to run independent expenditure campaigns supporting their candidates (and attacking their opponents). Robin Kolodny and Diana Dwyer, A New Rule Book, Party Money After BCRA, in Financing the 2004 Election 183, 199-203 (Magleby, Corrado, and Patterson eds. 2006) show the tremendous growth of these independent party-sponsored ads since BCRA closed the soft money spigot. They report that independent party spending was “the parties’ preferred mode of spending in [the 2004] election cycle.”
This rule creases some perverse incentives. As noted in Lowenstein and Hasen, Election Law 891 (3rd ed 2004), “Political parties and the candidates they nominate normally work closely together in campaigns. Colorado I and Colorado II taken together allow parties to spend independently without limit but permit controls on their spending that is coordinated with candidates. The cases therefore create a strong incentive for parties to separate their activities from their candidates. Is any public purpose served?”
There has been great controversy over an independent RNC ad in the Tennessee Senate race (view it here) that some accused of appealing to racism.
Corker, the Republican candidate, said he does not like the ad, and in this NPR interview, the RNC’s Ken Mehlman says he does not like the ad either, but because it has been produced by an independent unit, he has no control over whether or not it appears.
So the rule may create another perverse incentive: more negative advertising, which the parties can disown by claiming (apparently genuinely) that they had no control over the content. And what if the ad steps over the line? Then appear on NPR and condemn it. Those behind the firewall will get the message. This should work, unless the FEC would be ready to condemn such pronouncements as impermissible “coordination.”
UPDATE: A reader points me to these 2006 statistics compiled by the FEC, showing, among other things, that “Most independent expenditures [by four of the six party committees] in the current election cycle have been made in opposition to candidates ($92 million or 78% of all spending vs. $26.1 million (22%) spent in support of candidates). This contrasts with spending in the 2004 election cycle when $36.8 million was spent in opposition to candidates (40%) and $55.6 million (60%) was spent in support of candidates.” More evidence that IEs are funding negative advertising.