(Slightly) Rolling back restrictions on free speech

When will campaign finance regulation advocates that it is futile to restrict campaign expenditures? A new federal appeals court decision in DC has come to slightly acknowledge that.

The Supreme Court has ruled that the federal government’s only legitimate interest in restricting political donations is combating the appearance or reality of corruption that could arise from allowing unlimited contributions directly to a candidate or political party.

The court has held that, on the other hand, a desire to level the playing field or limit the power of moneyed interests is not a permissible reason for the government to limit the amount a rich person might spend on independent efforts to elect or defeat a candidate. In this case, the appeals court held that nonprofit groups are essentially like rich individuals, so the government cannot restrict their independent spending either.

“Donations to nonprofit groups cannot corrupt candidates and officeholders,” Judge Brett M. Kavanaugh wrote for a three-judge panel. “And to the extent a nonprofit then spends its donations on activities such as advertisements, get-out-the-vote efforts and voter registration drives, those expenditures are not considered corrupting, even though they may generate gratitude from and influence with officeholders and candidates.”

To regulate the political activities of nonprofit groups in order to ward off such potential gratitude and influence was overkill, Judge Kavanaugh wrote. He quoted Chief Justice John G. Roberts Jr. in the opinion overturning certain restrictions on corporate political spending two years ago in Federal Election Commission v. Wisconsin Right to Life: “Enough is enough.”

The Emily’s List case came about in the aftermath of the 2004 presidential election, when both major-party candidates complained about the free spending by 527 groups. In response, the Federal Election Commission established new rules, including a $5,000 limit on the amount of money from each contributor that a group could spend trying to influence federal elections. Emily’s List, which raises money for the election of Democratic women who support abortion rights, argued that the rules violated the First Amendment. The appeals court agreed.

Though the groups are prohibited from coordinating with candidates, political operatives say it is still usually easy enough to execute a strategy that a campaign manager has described in the news media. Or outside groups simply mimic the content and targeting of a campaign’s own commercials.

Advocates for stricter campaign finance rules said the appeals court decision would only encourage similar efforts around the 2010 midterm elections or the 2012 presidential race.

“This opinion, if it stands up, is going to make it harder to constrain the role of influence-seeking money in federal campaigns,” said Fred Wertheimer, president of Democracy 21.
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