Benjamin L. Ginsberg*
Coming in the midst of a season of unprecedented political spending,
the Supreme Court's Colorado Republican Party decision presents
the political parties with a chance for resuscitation even as Congress
considered measures that would decimate them. And, as the new sources
of funding showed, congressional tinkering with spending limits
and the campaign finance law's $1,000 and $5,000 contribution limits
seems sadly out of sync.
The 1996 campaign has already seen huge expenditures for issue
advocacy ads, voter guides and independent expenditures, and it
is unlikely to recede before the elections. Such heavy spending
from non-traditional sources means that the candidates and parties,
operating under tight limits on what they can receive, become less
relevant in today's campaigns. That is especially true of parties,
which until the Colorado Republican ruling, were also limited in
what they could spend for candidates.
Indeed, the past two decades have seen the parties, once the heart
of both political campaigns and American governance, struggle to
remain relevant. Regrettably for the health of the parties, the
Court did not grant their principal request -- a ruling that any
limitation on party spending for their candidates is unconstitutional.
This would have put the parties on a level playing field with those
outside groups now assuming a much more prominent role in campaigns.
But the Court did permit, in theory, independent expenditures by
the parties on their candidates' behalf. This, at least, will stave
off the day parties will become truly minor players on the political
landscape.
That is especially important because the vast majority of the proposals
before Congress seek to further restrict the amount of money available
to candidates and the parties. These proposals do not -- because
they constitutionally cannot -- do anything about the right of individuals
or groups to run issue ads, or distribute voter guides, or produce
independent expenditures or spend unlimited personal resources.
Of course, the result of restricting the funds of parties and candidates
would be to accelerate even more the flow of political dollars to
activities outside the Federal Election Campaign Act's limits and
reporting requirements. Rather than reduce corruption and the influence
of special interests, these restrictions would, more likely, render
the campaign laws increasingly irrelevant.
A number of the issues in both proposed legislation and in the
Colorado Republican case highlight this. As an initial matter, non-federal
(mostly) unreported dollars are paying for these issue advocacy
ads and voter guides. While these expenditures do not fall under
the FECA because they are about issues, they do affect voters' perceptions
of their public officials, who also happen to be on the ballot in
November. In the context of all this spending, does it make sense
for the FECA to restrict what parties can do directly to advocate
their candidates' election either individually or as a ticket?
As a constitutional matter, can Congress limit a political party's
ability to engage in robust debate and discussion of candidates
and their positions on issues of public importance? As a policy
matter, does it make sense to limit what parties can do for their
candidates when third party groups using money raised and spent
outside of the campaign laws' limits, source prohibitions or even
reporting requirements are becoming a dominant force? Should parties'
First Amendment rights somehow be given lesser weight than those
of corporations or unions to engage in political speech or debates
on issues?
The Colorado Republican case for the first time raised before the
Court a central issue for which the FECA and the Federal Election
Commission have long presumed answers. While the Court in Buckley
v. Valeo (1976) upheld limits on large direct contributions to candidates,
it had never directly examined whether larger (unlimited) contributions
by parties to their candidates present the same risk of quid pro
quo corruption. As a policy matter, it is difficult to see how parties
can be "corrupting" influences on their candidates. More
fundraising by parties and less by candidates means both that any
corrupting influences of money are at least filtered before finding
their way to candidates, and that candidates can spend more time
legislating and campaigning, and less fundraising. Furthermore,
parties make full disclosure of all sources of their funds, which
cannot be said by issue advocacy groups, non-profit corporations
or even those political action committees which receive significant
financial assistance from their connected organizations. While Colorado
Republican did not answer this issue, it did leave the door open
for a more definitive ruling in the future.
With the increase in unlimited issue advocacy and independent expenditure
campaigns, parties can play a pivotal role in restoring the importance
of candidates and their own campaigns. Parties are the buffer to
special interest political activity. If their role is not enhanced,
then the role of multi-million dollar issue advocacy ad buys and
independent expenditures will be enhanced.
However, a number of the bills before the Congress earlier this
year attempted to severely restrict what the parties can do by completely
federalizing activities now allocated between the federal and state
candidates who benefit.
Passage of such a law would mean that political parties as we know
them would cease to exist. The parties' mission is to elect their
candidates -- both federal and state. Congress passes laws for federal
elections. State legislatures pass laws for state elections. In
recognition of the importance of political parties supporting entire
tickets, the current law permits "mixed activities" --
those benefiting all candidates such as generic voter registration
("Register to vote Democrat"), voter turnout ("Go
to the polls today to back your Republican candidates") and
overhead -- to be paid for with a combination of federal and state
dollars. The new proposals would allow only federal funds to be
used.
This would lead to a dearth of funds with which the parties can
contact voters since the funds permissible in state elections (what
has come to be known as "soft money") could no longer
be used. Depending on what offices are on the ballot, this would
mean a reduction of between 50 percent and 80 percent in these voter
contact programs. Either fewer voters would be contacted (ironic
at a time when the registration gains realized by the so-called
"motor voter" law are just coming on line) or third party
groups using completely non-federal unreported funds will fill the
vacuum.
The larger result would be to reduce the rendering of the traditional
party committee to a historical curio. It is false to think that
federalizing voter contact party programs, as the legislation proposes,
will dry up soft money. The 1980s saw state legislative caucuses
come of age and gain light-years in sophistication and fundraising
ability. Gubernatorial and other statewide candidates went to school
on presidential campaigns and learned the value of voter contact
programs.
The bottom line is that if voter contact programs are federalized,
state candidates will simply abandon the national parties and set
up state-only entities for voter identification, registration and
turnout activities.
And guess who will be asked to pay? Those same special interests
whose role under federal law would be diminished under the proposed
legislation--special interests that are welcome in one form or another
in virtually every state. Of course, these contributions won't be
reported to the Federal Election Commission as they are now, but
it does mean that only clean hard federal dollars will be spent
by parties on behalf of federal candidates.
In addition, this would escalate the proliferation of tax-exempt
organizations conducting non-partisan voter registration and turnout
programs. Since parties won't have the funds, these entities will
see a void and a way to deliver a dependable cadre of voters for
candidates who share their positions. The irony is that the source
of funds for these programs (which will be unlimited and will not
have to be reported) will be exactly the corporate, union, trade
association and large individual contributions that the new law
would prohibit parties from using to conduct the identical activities.
In summation, as the Supreme Court's Colorado Republican ruling
chips away at limits on party spending, Congress seems intent on
restricting the parties' role. At the same time, massive expenditures
by third party groups render the campaign scheme with its $1,000
and $5,000 limits less relevant. This means the programs that parties
carry out are crucial, and the Supreme Court's green light for independent
expenditures is a positive sign that parties will be around to perform
their role.
*Mr. Ginsberg, who formerly served as General Counsel to the Republican
National Committee, is a partner at Patton Boggs, L.L.P. in Washington,
D.C.
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