By Peg Perl*
Today is the sixth anniversary of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission. The electorate has survived three election cycles of being bombarded by advertising funded by almost unlimited amounts of outside group spending in candidate races from local school board to President of the United States, most of it minimally disclosed—if at all. Yet, the major political parties are arguing publicly that they—not the voters—are the true victims of the Citizens United ruling.
As early as 2010, there was some argument that keeping political parties subject to contribution limitations and prohibitions while also enforcing robust public disclosure would harm parties vis a vis outside groups. National as well as some state-level Republican Party committees brought federal lawsuits immediately after Citizens United challenging limitations on political party contributions on constitutional grounds. The Fifth Circuit rejected the challenge, stating “we do not read Citizens United as changing how this court should evaluate contribution limits on political parties and PACs.” The special three-judge panel set up to rule on challenges to modern campaign finance law also upheld political party contribution limits, and the U.S. Supreme Court summarily affirmed on direct appeal. The three-judge panel in that case told the parties that the arguments about disparity between political parties and outside groups in spending and contribution restrictions was not a constitutional violation, but instead a policy argument to be made to Congress.
National political parties have a few friends and allies in Congress, and the 2014 “Cromnibus” bill funding the government included provisions that loosened restrictions on party fundraising. Specifically, the change in law raised the cap on contributions to political party committees from approximately $32,000 per year to over $324,000 per year for various committees controlled by the national parties.
Representatives of some state political parties think they still need help and that there is a constitutional right to raise money free of contribution limitations as long as it is spent on advertisements created independently of candidates. The Republican Party of Louisiana is arguing to a three-judge federal panel that it is unconstitutional to require the party to prohibit funding federal election activity with money not subject to federal contribution limits. Similarly, the Colorado Republican Party is seeking the constitutional right to set up its own internal committee that would not be subject to state law contribution limitations. Both of these constitutional challenges are still pending.
Yet, political parties are inherently differently situated—and indeed more powerful—than the outside groups let loose by the Citizens United ruling. As we see in the news daily, national and state political parties have the power to run Presidential caucuses or primaries and to set the number and schedule for Presidential debates. In most states, the political parties have preferential ballot access and control the means by which candidates can use that access. Political parties still have a privileged role in our political electoral system, something that outside money just can’t buy.
In addition, the ties political parties have to candidates and elected officials is exactly why the U.S. Supreme Court has repeatedly upheld as constitutional different and harsher contribution limitations for political parties to address the potential for corruption. Even the most recent Court case striking down aggregate biennial limits for contributions to various committees made this clear: “Our holding about the constitutionality of the aggregate limits clearly does not overrule McConnell’s holding about ‘soft money [to parties].’”
There is no constitutional imperative that political parties must be freed from contribution limits, but there remains a policy debate about whether that should be done to “rescue” the parties from allegedly unfair competition with outside group spending. The Brennan Center’s recent report “Stronger Parties, Stronger Democracy” does not advocate for complete removal of contribution limits on political parties. Instead, it offers a combination of public financing and re-tailoring the federal regulations on parties to encourage more broad-based participation of citizens in parties and elections.
Simply allowing political parties to take large checks from wealthy donors seeking specific policy outcomes from subsequently elected officials from that party only increases corruption. Contribution limitations are a needed check on the potential for pay-to-play politics when only two major political parties control most of the political and governing process of this country at the state and federal level.
* Peg Perl is Senior Counsel at Colorado Ethics Watch, a nonpartisan nonprofit organization and is a party in the pending case Colorado Republican Party v. Ethics Watch in the Colorado Court of Appeals.