The New DC Circuit Opinion in Emily's List, Citizens United, and the Role of Political Parties

At the oral argument in the Citizens United case last week, Justice Breyer asked the following question of Ted Olson:

JUSTICE BREYER: If that is so -- this is a point that is concerning me. I don't know the answer precisely. But suppose you are right. Suppose we overrule these two cases. Would that leave the country in a situation where corporations and trade unions can spend as much as they want in the last 30 days on television ads, et cetera, of this kind, but political parties couldn't, because political parties can only spend hard money on this kind of expenditure? And therefore, the group that is charged with the responsibility of building a platform that will appeal to a majority of Americans is limited, but the groups that have particular interests, like corporations or trade unions, can spend as much as they want?

It was an important question to ask, as the Court considers striking down limits on corporate and union spending. And today the stakes got even higher. In today's Emily's List decision of a D.C. Circuit panel, Judge Kavanaugh, for 2 of 3 judges on the case, enthusiastically follows the Supreme Court's deregulatory lead in crafting an opinion that essentially will allow individuals (and, I predict, eventually corporations and unions) to make unlimited contributions to political committees to fund independent expenditure campaigns. (The main reason we've seen the rise of 527s is that political committees, by statute, cannot accept more than $5,000 from individuals (and nothing from corporations and unions) to fund their federal candidate advocacy. If this ruling stands, there won't be much need for 527s anymore.).
If this opinion stands, coupled with an overruling of Austin and McConnell in Citizens United, political parties will be at a serious disadvantage. The Emily's List Court recognizes this point, and its response is--predictably---the need for more deregulation:

As some commentators point out, it might seem incongruous to permit non-profits to receive and spend large soft-money donations when political parties and candidates cannot. See Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 1705, 1715 (1999). But this perceived anomaly has existed to some extent since Buckley, which recognized that contribution limitations "alone would not reduce the greater potential voice of affluent persons and well-financed groups, who would remain free to spend unlimited sums directly to promote candidates and policies they favor in an effort to persuade voters." Buckley, 424 U.S. at 26 n.26. And McConnell similarly took note of the fact that, even after that decision upholding regulations on contributions to parties, "[i]nterest groups . . . remain free to raise soft money to fund voter registration, GOTV activities, mailings,” and advertisements. McConnell v. FEC, 540 U.S. 93, 187 (2003).

If eliminating this perceived asymmetry is deemed necessary, the constitutionally permitted legislative solution,as the Court stated in an analogous situation in Davis, is "to raise or eliminate" limits on contributions to parties or candidates. 128 S. Ct. at 2774. But it is not permissible, at least under current Supreme Court precedents, to remove the incongruity by placing these limits on spending by or donations to non-profits.

This kind of situation, where parties are left back, is not going to stand before Congress, which will then relax the soft money rules. This is why I've recently referred to the "campaign finance end-game" that comes from the Supreme Court's unraveling of campaign finance law:

Even if the court restrains itself in Citizens United, the writing is on the wall: if the court's members remain the same, the corporate limits eventually will fall. After that, the court could strike down contribution limits to PACs and the ban on party soft money.

We are moving toward a deregulated federal campaign finance system, where money flows freely and perhaps only disclosure laws remain. It is a world in which those with more money use their considerable funds to elect candidates of their choice and to have disproportionate influence over public policy. The unlevel playing field awaits.

As with the reargument order in Citizens United, the decision today was an act of anti-avoidance. Judge Brown in her Emily's List concurrence notes that the issue can be disposed of without reaching the constitutional questions. The main opinion, however, shows a real desire to move this change in the law quickly, not incrementally. (For true campaign finance junkies, the most important part of the majority opinion is footnote 13, which in turn parses McConnell's footnote 48, about which I written extensively).

Posted by Rick Hasen at September 18, 2009 10:24 AM