‘Reformers’ v. Reality after EMILY’s List decision

Last week’s ruling by the U.S. Court of Appeals for the D.C. Circuit in EMILY’s List v. FEC is unmatched in its clear and forceful defense of the First Amendment in politics. If the tone of the re-argument in Citizens United v. FEC didn’t put groups that support broad, burdensome campaign finance regulations on notice that the federal courts are resurrecting political free speech rights, EMILY’s List sent the message loud and clear (cleverly topping it off with footnotes from “reform” allies).

Roll Call ($) reported yesterday that the FEC is weighing an appeal. If the FEC passes, Solicitor General Elena Kagan could decide to appeal as well. CCP’s earlier post on the ruling is here and our press release is here.

The ruling, written by Judge Brett Kavanaugh, nullified the $5,000 cap on contributions to nonprofits and restrictions on ads mentioning federal candidates requiring the full costs of such ads to be paid for using “hard money” subject to such limits. The Court held that the Supreme Court’s jurisprudence has only allowed campaign finance regulations to prevent corruption, which clearly did not apply to the contributions to and independent expenditures of non-profit organizations.

“[I]f one person is constitutionally entitled to spend $1 million to run advertisements supporting a candidate (as Buckley held), it logically follows that 100 people are constitutionally entitled to donate $10,000 each to a non-profit group that will run advertisements supporting a candidate,” Kavanaugh wrote.

As a practical matter, this decision means that if an organization sets up a federal political action committee (PAC), they don’t renounce their right to run independent expenditures or otherwise participate in state and federal elections with unlimited funds — as long as they don’t coordinate with candidates. It means that the FEC won’t be threatening as many organizations with intrusive investigations; and, more importantly, it means that the government will be less involved with regulating independent political speech, increasing the ability of groups like EMILY’s List — and their counterparts — to freely participate in the political debate.

The 44-page decision (not including Judge Janice Rogers Brown’s 30 page concurrence) is brilliant in both form and substance. It crafts a powerful and compelling argument for the importance of the First Amendment in politics, citing research and comments from several “reformers,” including Edward Foley, Craig Holman, Rick Hasen and Pam Karlan to hammer its points home.

“Reform” groups reacted to the decision with predictable outrage. Tara Malloy of the Campaign Legal Center complained that the ruling would “‘create a loophole’ letting nonprofits use unregulated donations to influence federal elections,” according to Bloomberg News.

Wow. A loophole is pretty much generally accepted as an unintended — or at least certainly not the main — consequence of a ruling; which clearly isn’t the case here. Furthermore, free speech is not a loophole, no matter how much “reformers” howl about money influencing elections.

Democracy 21’s Fred Wertheimer, the newest convert to absolutist “judicial restraint,” cited Judge Brown’s concurring opinion in arguing that the Court should not have allowed groups to use soft money for independent purposes: “The majority reached far beyond the bounds of this case to unnecessarily decide broad constitutional questions not properly before the court,” Wertheimer said, according to The Washington Times.

Kavanaugh’s opinion, though, explains why the Court considered the constitutional question: the FEC’s position was contradictory to the Supreme Court’s campaign finance jurisprudence and chilled political speech, a core protection of the First Amendment: “For non-profit entities, the most pertinent Supreme Court precedents remain Buckley, Cal-Med, Citizens Against Rent Control, NCPAC and MCFL… [T]hose cases ultimately stand for the proposition that non-profit groups may accept unlimited donations to their soft-money accounts” [subject to only one exception — the corporate and union source prohibition in Austin likely to fall in Citizens United]. Kavanaugh also explains that “EMILY’s List forcefully argued that these regulations ‘violated the First Amendment of the United States Constitution'” [see pages 40-43 for a full explanation].

There’s no easy way to have invalidated the FEC regulations on independent political committees without reaching the conclusion that the Supreme Court’s interpretation of the First Amendment (as in Buckley, Davis, et al) needed to be addressed. The FEC lost, fair and square, and “reformers” are blaming the umpires like a petulant sports fan who can’t see reality beyond team loyalty.

“Reformers” seem to be getting desperate, and it’s encouraging that with each new campaign finance court decision, their anti-utopian vision of government-regulated speech fades a bit more into the ether.