The major political parties have blown large and widening holes in federal campaign finance law. The most significant party practices ? independent expenditures, soft money fundraising, and issue advocacy ? map on to the fault lines central to the constitutional law of campaign finance ? so that limiting these party activities raises important constitutional question. Indeed, in Colorado Republican Federal Campaign Committee v FEC, a Supreme Court plurality determined that parties, like PACs, may engage in expenditures that are independent of their candidates and, thus, not subject to the limits on party contributions to candidates. So, too, several justices and some political scientists have questioned whether a party's support for its candidates even raises the danger of corruption which is a sine qua non for regulating campaign finance activity. This Article argues that parties are not like other political committees, such as PACs, and that their finance practices do trigger the corruption concern central to the Buckley doctrine. Due to the close structural connection between parties and their candidates, the overarching concern of the major parties with winning elections and wielding power in government, and the ability of large donors to use contributions to party committees to influence government action, the major parties should be constitutionally more easy to regulate -- not more difficult -- than other political organizations. The Article explains why restrictions on concerning party independent expenditures, party issue advocacy, and soft money fundraising are constitutionally sound, and it presents specific proposals for limiting party fundraising and spending that would be constitutional if the doctrinal distinctions the Supreme Court has drawn are interpreted in light of the particular relationships of party committees, party candidates, and party donors. These proposals are not anti-party but pro-campaign finance reform. Due to their roles of supporting challengers, focusing on grass-roots political activity, and combining and thereby partially diluting multiple special interest groups, the parties play a positive role in our political system. Indeed, I will suggest that once party money is subject to effective regulation, increasing the money the parties are allowed to spend in support of their candidates would actually be desirable. But unlimited contributions to, and unlimited spending by, the parties jeopardize the anti-corruption values at the heart of campaign finance law. Unless party money is subject to effective limits, campaign finance reform is doomed to failure.
The Political Parties and Campaign Finance Reform,
Columbia Law School, Public Law Working Paper No. 012
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1214