Campaign finance, the parties and the court: a comment on Colorado Republican Federal Campaign Committee v. Federal Elections Commission.

• Author: Briffault, Richard

Last term, in Colorado Republican Federal Campaign Committee v. Federal Election Commission,(1) the Supreme Court considered a direct attack on the constitutionality of the Federal Election Campaign Act's ("FECA") limits on political party expenditures. Colorado Republican was the Court's first campaign finance case in six years and the first in which the four Justices appointed by Presidents Bush and Clinton had an opportunity to participate. Colorado Republican was also the first case in the twenty-year regime of Buckley v. Valeo(2) concerned with the constitutionality of restrictions on parties.(3) Coming at a time of rising public concern, increased legislative activity, and continued academic ferment over campaign finance, Colorado Republican offered the promise of clarifying the current Court's approach to campaign finance regulation, marking out the contours of the rights of parties in the campaign finance context, and assessing the implications of judicial doctrine for potential legislative changes.

The Court, however, failed to resolve the central issue in the case. Instead, it fragmented into four opinions, none of which commanded the votes of more than three Justices.(4) A seven-member majority rejected the effort of the Federal Elections Commission ("FEC") to enforce FECA in the case before it, but the three Justices who joined the pivotal opinion authored by Justice Breyer limited their views -- and, thus, the holding of the Court -- to the facts of the case and declined to reach the broader issue of the constitutionality of limits on party involvement in campaign finance. The six Justices who did reach the issue were sharply divided. Moreover, one Justice directly, and two others implicitly, challenged Buckley v. Valeo's basic approach to campaign finance regulation -- although their different opinions embraced decidedly different perspectives.

Colorado Republican illustrates nicely the conceptual difficulties built into the Court's campaign finance doctrine. Buckley's central concerns have proven difficult to apply in practice or justify in theory, and the Court has vacillated with respect to the degree of deference to be given to the judgment of the political branches concerning whether campaign practices present dangers that may be the basis for regulation.

Moreover, political party spending is particularly difficult to fit into the Court's conceptual framework because party activities bridge Buckley's basic doctrinal categories. Many academics have urged a more party-centered approach to campaign finance -- the Committee for Party Renewal filed an amicus brief in the case -- claiming it would reduce the influence of special interests on the political process. However, so long as parties themselves receive their funds from private individuals and organizations, it is questionable whether a party-centered system would do much to ameliorate special interest influence. Moreover, judicial establishment of an unlimited party spending right could have broader effects on the campaign finance laws.

Part I of this comment briefly summarizes the facts, statutory framework, and procedural history of Colorado Republican. Part II reviews the Buckley doctrine. Parts III and IV examine and appraise the Court's multiple opinions. Finally, Parts V and VI consider the implications of constitutional protection of party spending for the campaign finance laws, and the implications of Colorado Republican for the future of campaign finance doctrine.

1. BACKGROUND: THE FACTS, THE STATUTE, AND

   THE PROCEDURAL HISTORY

   Colorado Republican was ten years in the making. In January 1986, then-Representative Tim Wirth declared his candidacy for the Democratic nomination for the Senate seat being vacated by Gary Hart that fall.(5) Shortly thereafter, Wirth began to run ads outlining his position on a number of issues. In April and May 1986, the Colorado Republican Party paid for three radio ads and two pamphlets criticizing Wirth's voting record, mentioning that he was running for the Senate, and charging Wirth with misrepresenting his record in his ads. The anti-Wirth radio ad which became the subject of the FEC's enforcement action against the Colorado Republican Party included the following statements:

   "I just saw some ads where Tim Wirth said he's for a

   strong defense and a balanced budget. But according to his

   record, Tim Wirth voted against every major new weapon

   system in the last five years. And he voted against the balanced

   budget amendment."

   "Tim Wirth has a right to run for the Senate, but he

   doesn't have a right to change the facts."(6)

   The state party committee paid $15,000 to run the ad. At the time it was aired, three Republicans were seeking their party's nomination, although two withdrew before the Republican state convention in June. Wirth and his Republican opponent, Rep. Ken Kramer, were not officially nominated until their party primaries in August.

   In June 1986, the Colorado Democratic Party filed a complaint with the FEC alleging that the Republican anti-Wirth expenditures violated the spending limits FECA imposes on party committees.(7) In January 1989, the FEC determined there was probable cause to believe the Republicans had violated FECA and, when settlement negotiations failed, instituted a civil enforcement action. The Republicans responded by arguing that the expenditures in question were not subject to the FECA limits, and that the FECA limits are unconstitutional.

   FECA provides two avenues for parties to spend money on behalf of candidates for federal office. First, parties, like all other political committees, may contribute up to $5000 to a candidate "with respect to any election for Federal office."(8) Second, parties may make "coordinated expenditures" on behalf of their candidates. FECA ordinarily treats expenditures made "in cooperation, consultation, or concert, with" a candidate as contributions subject to contribution limits even if the "donor" did not actually give the money to a candidate.(9) FECA, however, provides a special exception for party committee spending "in connection with the general election campaign of candidates"(10) for Congress. In a Senate election, a party committee may spend up to two cents times the voting age population of the state in which the race occurs, or $20,000 adjusted for inflation from a 1974 base, in coordination with the party's Senate candidate's campaign.(11)

   On the other hand, the FEC has determined that parties may not make "independent expenditures," that is, expenditures not in "cooperation, consultation, or concert" with a candidate. FECA, as amended in 1974, had imposed dollar ceilings on independent expenditures by individuals and political committees, but the Supreme Court in Buckley held such limits unconstitutional. The FEC subsequently deemed parties incapable of making expenditures truly independent of their own candidates' campaigns,(12) and adopted a regulation forbidding national and state party committees from making "independent expenditures in connection with the general election campaign[s]" for federal office.(13)

   At the time of the 1986 election, the limit on coordinated party spending for the Senate race in Colorado was $103,000, which would have been more than enough to cover the anti-Wirth ad. However, the Colorado state party, like most state Republican parties, had assigned to the National Republican Senatorial Committee ("NRSC") its coordinated spending authority. As a result, the anti-Wirth ad violated FECA -- if the spending limit applied, and was constitutional.

   In the lower courts, much of the Colorado Republican litigation focused on the question of the applicability of the FECA limits to the anti-Wirth ad. FECA's coordinated spending ceiling and reporting requirements apply only to expenditures "in connection with" a federal election. But the notion of spending "in connection with" an election campaign is inherently fuzzy and potentially sweeping. Communications concerning the performance of public officials or the wisdom of pending legislation can certainly affect the electoral fortunes of candidates, so campaign finance regulations could logically apply to a wide range of communications concerning politics and government. Such a broad reading could chill free and unfettered discussion of public issues. The Supreme Court thus determined that the First Amendment requires statutes regulating spending "in connection with" elections to be read narrowly and limited to spending expressly advocating the election or defeat of a clearly identified candidate.(14)

   Although the Colorado Republicans' ad clearly identified Tim Wirth, it did not literally urge Wirth's defeat or the election of a Republican. The district court concluded that the ad "[a]t best ... contains an indirect plea for action" which fell short of the "express advocacy" required to avoid infringing on constitutionally protected discussion of public issues.(15) The FECA limit thus did not apply to the anti-Wirth ad, and the court dismissed the FEC's suit.

   The Tenth Circuit Court of Appeals reversed. The appellate court agreed with the district court that the anti-Wirth ad was not express advocacy "within the narrow definition" of prior Supreme Court cases.(16) But, after extended analysis,(17) the court deferred to the FEC's determination that limits on coordinated party spending could be constitutionally applied to spending with an "electioneering message" concerning a clearly identified candidate. The court found that the Republican ad did have an electioneering message with respect to Wirth and, thus, that the FECA limit applied. Since the state Republicans had transferred their statutory spending authority to the NRSC, their expenditures violated the FECA ceiling on coordinated party spending. The court then briefly considered and rejected the Republican claim that the FECA limit was unconstitutional.

2. THE BUCKLEY DOCTRINE AND PARTY...