Posted March 5, 2008 by J. Gerald Hebert

CLC Files Amicus in SpeechNow.org 527 Case

In a friend of the court brief filed earlier today, the Campaign Legal Center noted that the SpeechNow.org suit is nothing more than a petition urging the court to ignore decades of Supreme Court precedent and to reopen the corrupting soft-money spigots closed by the Bipartisan Campaign Reform Act (BCRA). SpeechNow.org has filed a lawsuit challenging the contribution limits imposed on so-called “independent committees” who seek to influence federal elections.   The suit against the Federal Election Commission (FEC) in essence asks that the rich be permitted to contribute millions of dollars without full disclosure or regulation to such groups, even though they are 527 organizations and often operated by individuals closely associated with candidates and party committees.

As the amicus brief filed today by the Legal Center and Democracy 21 makes clear, the Supreme Court clearly ruled more than three decades ago in Buckley, that contribution limits pass constitutional muster, constituting only a “marginal restriction” on rights of speech and association.  Again and again in the ensuing decades, the brief noted, the Supreme Court has recognized that laws to prevent the circumvention of contribution limits serve important government interests by protecting the integrity of campaign finance laws.  We are hopeful that the Court will deny SpeechNow.org’s request for relief.

Below are the Introduction and Summary sections of today’s Amicus filing:

I.          Introduction

            Contrary to the arguments made by plaintiffs, this case is not about whether SpeechNow.org, or similar groups, will have the capacity to make expenditures in unlimited amounts to expressly advocate the election or defeat of their preferred federal candidates.  That right, long since established in Buckley v. Valeo, 424 U.S. 1 (1976), is not in dispute here.  Nor is this case about whether individuals can freely associate in order to pool resources so that their collective voice will be amplified to fund such independent advocacy.  That right is part of the structure of the campaign finance laws, which allows individuals to associate in the form of a political committee and to pool resources – in amounts up to $10,000 from each donor in each two-year election cycle – in order to engage in collective campaign-related speech. 

            Instead, this case is about whether wealthy donors can each contribute hundreds of thousands, or indeed, millions of dollars to sophisticated committees often run by Washington political operatives, closely associated with parties and candidates, in order to finance campaign advocacy that takes place wholly outside of federal campaign finance rules.  Just years after Congress, with Supreme Court approval, ended a system of soft money that flowed through political party committees to influence federal elections, this case is about whether the Constitution requires the establishment of a new soft money regime – this time with the money from wealthy donors flowing through section 527 groups, such as plaintiff here.  It does not.

II.        Summary of Argument

            Plaintiffs principally challenge the constitutionality of limits on contributions to political committees that engage only in independent expenditures.  Because a limit on contributions (unlike a limit on expenditures) entails only a “marginal restriction” on rights of speech and association, Buckley, 424 U.S. at 20-21, it warrants a “less rigorous degree of scrutiny” and is valid if it “satisfies the lesser demand of being closely drawn to match a sufficiently important interest.”  McConnell v. FEC, 540 U.S. 93, 136-37 (2003). 

            Here, that scrutiny is satisfied because nominally “independent” 527 groups, like SpeechNow.org, have a track record of serving as conduits for large donors seeking to avoid the limits on contributions to the political parties – limits that were recently enacted by Congress, and upheld by the Supreme Court, to shut down the corrupt soft money system.  The experience of the 2004 campaign demonstrates how political party operatives in both parties, working in close conjunction with party officials, set up 527 groups which received multi-million dollar contributions from former party soft money donors who simply shifted their soft money giving to these new vehicles.  These 527 groups thus became “soft money surrogates,” McConnell, 540 U.S. at 177, for the circumvention of the law.

            In a long line of cases, the Supreme Court has recognized that laws which prevent the circumvention of contribution limits thereby serve important governmental interests by protecting the integrity of the campaign finance laws.  E.g., McConnell, 540 U.S. at 144.  Those interests are directly served here, because absent a limit on contributions to “independent expenditure committees,” such committees threaten to become “effective conduits for donors desiring to corrupt federal candidates and officeholders.”  Id. at 156 n.51.