Charles H. Bell, Jr.*
The Supreme Court decision in Colorado Republican Federal Campaign
Committee v. Federal Election Commission may be influential despite
its limited, direct impact on political party spending in federal
elections. Instead, the case may be noted in the future as the "high
water mark" of the Liberal Political Nanny State the
attempt to realign political and economic power by limiting the
influence of money in political campaigns. That prospect is heralded
by Justice Clarence Thomas' opinion (concurring in the judgment
and dissenting in part) which points the way toward a principled
rejection of the constitutional rationale for limitations on campaign
contributions and spending, as enunciated twenty years ago in Buckley
v. Valeo (1976).
Ironically, while liberals have groused at the "liberality"
of the Buckley decision, and have debated whether to mount a frontal
assault on the Buckley holding that public financing of campaigns
was the constitutional predicate to severe limitations on private
campaign expenditures, in the Colorado case, much to the liberals'
surprise, the first sounds of gunfire in a frontal assault on Buckley's
restrictive regimen on political contributions and spending were
heard from the right. (While only Justice Thomas called for an outright
repudiation of Buckley's distinction between contributions and expenditures,
Chief Justice Rehnquist and Justice's Scalia and Kennedy also appear
to be hostile toward campaign finance restrictions.)
The Colorado decision, of course, directly affects the rights of
political parties to spend money independently in congressional
and senatorial campaigns. The Colorado case involved pre-primary
election spending by the Colorado Republican Party on advertisements
against the Democrat incumbent, Senator Tim Wirth. At the time of
the Colorado Republicans' expenditure campaign, a Republican nominee
had not been selected to run against Wirth. Thus, they could have
viewed the expenditures in question as "independent expenditures,"
a category of expenditure Buckley exempted from limitation (at least
for individuals and PACs). The decision, in which seven justices
concurred in the result, struck down as unconstitutional the FEC's
rule that prohibited a political party from making independent expenditures.
The controversy in the Colorado case, however, involved the Federal
Election Campaign Act ("FECA") limits on political party
spending in federal races, contained in the provisions of Section
441a(d)(3) "coordinated expenditure limits." The FECA
limits to $0.02 per registered voter the amount a state political
party committee, and the national committee of a political party,
can spend on congressional and senatorial campaigns in each state:
in 1996, a state political party may spend over $30,000 in general
election "coordinated expenditures" in support of each
congressional candidate and more, depending on each state's voting
age population, in support of its U.S. Senate candidate. These expenditures
may be coordinated with the party's candidates. Their very coordination
makes them something other than "independent expenditures,"
as acknowledged by both the author of the lead opinion, Justice
Breyer, and the four justices who would have invalidated such limits.
While congressional enactment of these "coordinated expenditure"
limits was considered a major liberalization of earlier FECA limits
on political party contributions and expenditures, the Colorado
Republican Party sought to invalidate the "coordinated expenditure"
limits. However, the Breyer plurality opinion in the Colorado case
expressly declined to reach the constitutionality of such expenditure
limits. Justice Kennedy, with whom Chief Justice Rehnquist and Justice
Scalia joined in dissenting in part on that point, contended that
the section 441a(d) coordinated expenditure limit was unconstitutional,
because there was no distinction between political party expenditures
and the party candidate's expenditures the Supreme Court had exempted
from limitation in Buckley. Indeed, Justice Kennedy found that political
parties and their candidate nominees shared an identity, and that
identity defeated any contention that party spending limits could
be justified under Buckley.
However, it is Justice Thomas' separate opinion that may be a hallmark
in the jurisprudence with respect to campaign spending issues. Justice
Thomas flatly rejects the analytical distinction adopted in Buckley
between contributions and expenditures. His opinion therefore lights
the path to a future reconsideration of Buckley. As discussed below,
such cases loom on the horizon.
The most important prospect of the Colorado case is whether it
will result in a truly dramatic turn toward free speech in campaigns.
The Buckley decision of the Burger Court, though viewed as a "half
loaf" by liberals, justified detailed legislative restrictions
on campaign contributions and spending favored by liberals. Liberals
have a blind spot about the First Amendment when it comes to political
communications. Whether it was the "right of access" under
the "Fairness Doctrine" applicable to political issues
coverage by the broadcast media, or limitations on campaign contributions
and spending by "special interests," liberals have favored
the most stringent regulatory limitations on political speech: a
Political Nanny State. Here, the premise of liberals' leveling instinct
is their fundamental interest in realigning political and economic
power, and in fixing the rules to accomplish those ends -- in this
case, restrictive controls of political speakers. The Supreme Court's
decision in Austin v. Michigan Chamber of Commerce (1990) interpreted
Buckley to provide constitutional support for legislation discriminating
between different classes of contributors. In Austin, the Court
upheld a Michigan statute prohibiting corporate contributions while
leaving undisturbed the right of labor unions to contribute in state
While the goal of enacting such limitations in the current Congress
seems remote, liberals have been at work in the fifty states (especially
in Missouri, Minnesota, Oregon, Kentucky and California) enacting,
or seeking to enact, a variety of regulations which smother the
use of private contributions in political campaigns. The harshness
of these measures, some of which have been struck down already by
lower federal courts, gives rise to the suspicion that the liberals'
hidden agenda is to drive private money out of campaigns.
Propositions 208 and 212, citizen-qualified ballot initiatives
on the November 1996 California ballot, display this liberal impulse.
Emboldened by Ross Perot's attacks on campaign and lobbying spending
by "special interests," Common Cause and a variety of
liberal groups allied with Perot supporters to place a restrictive
campaign finance measure, Proposition 208, on the ballot. Proposition
208 severely restricts individual and group contributions to candidates
from city council to governor ($250 to local, $500 to gubernatorial
candidates per election); imposes very strict "voluntary"
expenditure limits (well below the amounts spent in recent competitive
elections for such offices); imposes a "fund-raising blackout"
period for three years of a four-year term of an officeholder (as
well as his or her challenger); severely limits the aggregate amount
any individual donor, PAC, corporation or labor union may contribute;
imposes an additional aggregate contribution limit upon all non
individuals to a single candidate of 25% of the candidate's overall
spending limit; and throws in for good measure a variety of "fine
print" technical rules to frustrate volunteer involvement in
Not content with Proposition 208's draconian measures, a radical
group allied with Ralph Nader spun off from the Common Cause coalition
to qualify an even more extreme measure, Proposition 212. Proposition
212 mimics most of the Proposition 208 provisions, with lower limits
and stricter prohibitions. Individuals would be able to give $100
to a candidate, $200 to a PAC, and $600 to a political party per
election. Proposition 212 does not pretend to tiptoe around Buckley:
rather, it mounts a frontal attack by expressly proposing "mandatory
expenditure ceilings" for candidates without provision for
any public financing. Further, Proposition 212 bans corporate and
labor union contributions altogether while creating a special contribution
limit for labor union PACs which is 100 times the contribution limits
imposed on all other groups! Finally, Proposition 212 criminalizes
all violations of the state campaign, lobbying, and conflict of
interest laws. (The Proposition 212 reformers may have tripped,
however, by abolishing the state's current rules limiting gifts
and honoraria payments to elected candidates and public officials.)
Both measures currently lead in pre-election public opinion polls.
California's voters, whose antipathy to elected officials is evidenced
by their previous adoption of four "campaign reform" measures
and two term limit measures at the ballot box, are expected to approve
both measures. While confusion is likely to follow should both measures
be adopted, legal challenges are assured.
Propositions 208 and 212 contain provisions similar to (and in
some respects, more extreme than) those adopted by voters in Missouri
and Wisconsin, which federal courts invalidated in 1995. Legal challenges
to Propositions 208 and 212 are likely to present the Supreme Court
with the fundamental question posed by Justice Thomas's concurrence:
whether the Court should abandon Buckley in favor of substantially
fewer restrictions on campaign spending.
The narrow holding of the Colorado case is likely to have limited
impact on political campaigns of political parties. Political parties
may engage in non-coordinated, independent spending to support their
nominees and to oppose the other party's incumbents. Some political
parties may launch an independent expenditure anti-incumbent attack
to soften up the opposing party's incumbent. The political party
may be able to undertake such a negative campaign, because the party
leadership can -- and arguably must -- initiate such a campaign
before its own nominee has been selected. Such a campaign could
be conducted on the assumption the eventual party nominee would
not object to the message or tenor of the negative attack. That
is not assured, however, since candidates and their advisers generally
like to control the message (particularly negative messages) made
by perceived proxies of the candidates (such as their political
party). It is just such control that compromises the requisite "independence"
of independent expenditure efforts.
Even if freed to make independent expenditures, however, political
parties will not be free to engage in political speech and association
until the FECA "coordinated expenditure" limits fall.
This is because a political party's fundamental nature, as a coalition
to elect its nominee candidates, will make truly independent spending
difficult or impossible.
Current FEC regulations strictly limit who can participate in independent
expenditure campaigns, by restricting severely the ability of independent
committees to use vendors or high level supporters of the candidate
who benefits from the independent expenditure committee's efforts.
Moreover, as noted by Justices Thomas and Kennedy in Colorado, political
parties are -- or are at least perceived by the public to be --
largely creatures of their candidates and their supporters. Ironically,
FEC rules require independent committees to be "independent"
of, and not creatures of, the candidates they support.
Thus, unless a political party is prepared to select certain officials
and vendors and send them into a virtual "campaign black box,"
to operate free from contact and coordination with the party's candidates,
the candidates' consultants, and fund raisers and other party volunteer
leaders who are associated with those candidates, it will be very
difficult for the political party to conduct a truly independent
expenditure effort under FEC rules, as now permitted by the Colorado
decision. And FEC enforcers, who have long considered political
parties to be "mere conduits" for contributors seeking
to corrupt a candidate (as reflected, for example, in the FEC's
"soft money" allocation rules for political party spending
and its political party "affiliation" rules) are sure
to interpret Colorado narrowly, granting little if any latitude
for political party independent expenditure campaigns.
For all of these reasons, the most significant impact of the Colorado
decision is likely to be the prospect of rejection of Buckley's
rationale for limitation on campaign contributions and spending,
as urged by Judge Thomas.
Charles H. Bell, Jr. is a partner at Bell, McAndrews & Hiltachk
in Sacramento, CA, and serves as Vice-Chairman of the Free Speech
and Election Law Practice Group.