Campaign Reform Groups' Comments on 527s now available; Can the Groups (and FEC) Successfully Sidestep Key Political and Constitutional Questions?

Following up on this post, here are the comments of Democracy 21, the Campaign Legal Center, and the Center for Repsonsive Politics on the FEC's upcoming proposed rulemaking on 527s organizations.
The groups advocate a major purpose test (similar to Alternative 2-A, for those who have followed the NPRM) that would apply to 527s. But, in a move intended to sidestep a potential political firestorm, the groups would not apply the major purpose test to 501(c) organizations. (This, unsurprisingly, echoes Sen. McCain's comments posted here.)

The comments also seek to sidestep the key constitutional question involved in regulating 527s that make only independent expenditures. Their entire discussion is in footnote 10:

10 Questions have been raised about the constitutionality of this contribution limit insofar as it applies to non-connected committees that make only independent expenditures. We believe this limit is constitutional. E.g., McConnell, 157 L.Ed.2d at 554 n. 48. Furthermore, nothing in FECA or BCRA exempts such committees from the contribution limit, and a longstanding regulation of the Commission specifically applies the contribution limit in this context. 11 C.F.R. § 110.2(k). This regulation has not been noticed in this rulemaking and the regulation, and issues relating to it, therefore, are not before the Commission in this proceeding.

As expected, the reformers are relying on a cryptic footnote in McConnell, which suggests that even limits on independent expenditures might be constitutional. Did the Court really mean to call Buckley v. Valeo's core distinction between contributions and expenditures into question in footnote 48? This is a much more difficult question than the reformers' footnote 10 reveals, and likely would be the focus of litigation should the FEC adopt rules that would regulate 527s that make only independent expenditures. (I have said more on this question here and here.)
So how should an FEC commissioner vote on the NPRM if he or she believes that some 527s qualify as political committees under a reasonable "major purpose" test, but that it is unconstitutional to regulate such political committees that make only independent expenditures? [UPDATE: "[U]nconstitutional to regulate" was a bit too loose. Of course, disclosure of contributions to and spending by such organizations could be required, and other regulations could apply. What I should have written is "unconstitutional to limit individual contributions to".] Is it enough that the constitutional issue "has not been noticed in this rulemaking" and pass the buck to the courts? And all of this in the context of an ongoing (and very hot) presidential election season?

Posted by Rick Hasen at April 6, 2004 09:08 AM