BNA Money & Politics Reports ($) published an article about the brief filed on behalf of the Federal Election Commission (“FEC”) urging the United States Supreme Court to deny the cert petition filed by the Republican National Committee (“RNC”) and former Congressman Cao. The RNC and Congressman Cao are waging a constitutional challenge to the coordinated expenditure limits that apply to the amount of funds that may be spent in full coordination by political party committees on behalf of their nominees for federal office. Coordinated expenditures may be spent on everything from overhead to paid political advertising.
Rick Hasen of Election Law Blog believes that the Court may accept the case. I wish I shared his optimism. This is an important case that should be heard by the Supreme Court, especially in the post-Citizens United world where outside groups are permitted to raise donations in unlimited amounts from sources that are prohibited from contributing to the national party committees.
The world has changed significantly since the Supreme Court last reviewed this issue. For example, national party committees are prohibited from accepting soft money, even for overhead expenses, which is a drain on the amount of funds available for candidate advocacy. This case involves only hard dollars – no soft money is spent on coordinated expenditures by the party committees.
Moreover, the FEC’s brief belittles the burdens of establishing and maintaining the independent expenditure units (“IE Units”) so that national party committees can spend what funds they have promoting their candidates and defending them from attacks by their opponents. While not strictly required by the FEC rules, national party committees go through the pain and expense of establishing IE Units because it is the best way to dispose of a coordination complaint. Coordination enforcement actions are costly, burdensome matters that drain the resources of the party committees. The threat of these complaints and burdensome discovery has the practical effect of shifting the burden of proof to the party committees to prove their innocence at the complaint phase.
The time has come to unshackle the party committees and allow them to fully support their candidates. This is especially the case where a party committee wishes to communicate its own views about a candidate but believes it must suffer the expense of establishing an IE Unit before doing so. The chill placed on the First Amendment associational and speech rights of political party committees by the coordinated expenditure limits should be lifted.