Supreme Court examines political-party contribution limits

Thursday, March 1, 2001

  • Justices weigh Christian group’s appeal for access to school

    The Supreme Court yesterday seemed poised to strike down yet another provision of federal campaign-finance law on First Amendment grounds.

    The justices heard oral arguments in Federal Election Commission v. Colorado Republican Federal Campaign Committee, a challenge to a provision of federal law that imposes a $20,000 cap on what political parties may spend in coordination with candidates for federal office. The FEC enforced the restriction against the Colorado Republicans following the 1986 senatorial election.

    Acting Solicitor General Barbara Underwood defended the provision as a legitimate way to prevent “fat cats” and others from using parties as a “conduit” for large donations that would otherwise exceed the limit on individual contributions to candidates.

    But several justices suggested the restriction struck at core political speech rights of the parties. “The whole purpose of a party is to support candidates,” said Justice Antonin Scalia.

    Chief Justice William Rehnquist added, “It’s very difficult to see how receiving contributions would corrupt a political party.”

    Justice Anthony Kennedy suggested it was “very strange” that party expenditures made without consulting candidates would enjoy First Amendment protection, while coordinated expenditures would not. In a 1996 case involving an earlier phase of the Colorado litigation, the Supreme Court struck down the limits on these independent party expenditures.

    Washington lawyer Jan Baran, who has been challenging the restrictions on behalf of the Colorado Republicans for more than 14 years, told the justices that the money that parties use for coordinated expenditures comes from “hard-money” donations – not from soft money – and therefore should be encouraged, not restricted.

    Striking down the limit, Baran told the court, would provide parties with an incentive to raise more hard money. “Now, there is a perverse incentive to raise soft money,” he said.

    In interviews before the arguments, Baran said Congress would be well-advised not to act on the McCain-Feingold-Cochran campaign-finance reform bill until the high court rules in the Colorado case. And it is true that every time the court rules in this area, its decisions are closely read for any new nuances in its analysis of the interplay between campaign-finance reform and the First Amendment. The concern by some justices that limits on campaign money violate freedom of speech is the leading obstacle to major campaign-finance reform, many legal experts agree.

    In spite of Baran’s assertion, during the arguments Justice Sandra Day O’Connor portrayed the law at issue in the case as “such a tiny segment of the problem. We’re not talking about soft money.”

    Supporters of campaign-finance reform, perhaps already anticipating that the high court will rule against the law at issue, are underscoring O’Connor’s point, arguing that the case is of little importance in the overall campaign-reform debate.

    “It has almost nothing to do with the McCain-Feingold reform bill pending before Congress, or whether Congress can reform soft money,” said Common Cause President Scott Harshbarger yesterday. “If past is prologue, defenders of the current campaign-finance system will take whatever decision the court reaches in the Colorado case and spin it into some kind of death warrant for campaign-finance reform.”

    Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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