Two federal courts here issued decisions on Friday addressing the
impact of Citizens United, January’s big Supreme
Court campaign finance ruling, on a new issue — whether the
government may constitutionally restrict the size of contributions to
groups that spend money to support political candidates.
One court said that individual contributions to advocacy groups known as
527s may not be limited. Another said that contributions to political
parties can, though it said it was aware the resulting playing field
might not be a level one.
Stephen M. Hoersting, a lawyer for the winning side in the first case,
said the ruling represented a logical and welcome extension of Citizens
“The court affirmed,” Mr. Hoersting said in a statement, “that groups of
passionate individuals, like billionaires — and corporations and unions
after Citizens United — have the right to spend without limit to
independently advocate for or against federal candidates.”
Fred Wertheimer, the president of Democracy 21 and a longtime supporter
of campaign finance regulation, said he welcomed the second decision as
“a major victory in the battle to prevent corruption and the appearance
of corruption of political parties and their federal candidates through
unlimited campaign contributions.”
The five-justice majority in Citizens United ruled that corporations and
labor unions may spend their own money to support or oppose political
candidates through independent communications like television
advertisements. The decision did not disturb prohibitions on corporate
contributions to candidates, and it did not address whether the
government could regulate contributions to groups that make independent
The case concerning 527s, named after a section of the tax code, was
brought by SpeechNow.org,
which said it wanted to raise money to produce advertising to back
candidates who supported the First Amendment. The group sued the Federal Election Commission, saying that limits on
annual contributions from individuals were unconstitutional.
Writing for a unanimous nine-judge panel of the United States Court of
Appeals for the District of Columbia Circuit, Chief Judge David B.
Sentelle said the Supreme Court had identified only one government
interest sufficient to overcome the First Amendment protections afforded
to contributions for political speech: preventing corruption or the
appearance of corruption.
Chief Judge Sentelle said that Citizens United had foreclosed that
rationale where the spending is not coordinated with a candidate.
Indeed, Justice Anthony
M. Kennedy, writing for the majority in Citizens United, said that
“independent expenditures, including those made by corporations, do not
give rise to corruption or the appearance of corruption.”
The election commission had argued in the SpeechNow.org case that large
contributions to groups that made independent expenditures could “lead
to preferential access for donors and undue influence over
Chief Judge Sentelle said those arguments “plainly have no merit after
Since the expenditures themselves do not corrupt, Chief Judge Sentelle
reasoned, neither do contributions to groups that make the expenditures.
A special three-judge panel of the Federal District Court for the
District of Columbia used much the same reasoning to come to a different
conclusion in a separate decision on Friday, this one concerning
contributions to political parties. The case was brought by national,
state and local Republican groups.
The decision was written by Judge Brett M. Kavanaugh, who ordinarily
sits on the appeals court and was a member of the nine-judge panel in
the first case.
The question was whether the so-called soft-money ban in the Bipartisan
Campaign Reform Act of 2002 is constitutional. The law, often called
McCain-Feingold, limits individual contributions to political parties
even if the money is to be spent on activities unrelated to federal
The Supreme Court upheld the soft-money ban in a 2003 decision,
McConnell v. F.E.C. It said there was “no meaningful distinction between
the national party committees and the public officials who control
them” and so “large soft-money contributions to national parties are
likely to create actual or apparent indebtedness on the part of federal
That reasoning, left intact by Citizens United, was enough to dispose of
the case, Judge Kavanaugh wrote. The challengers’ position, he said,
“carries considerable logic and force” but boils down to “asking us to
overrule McConnell’s holding with respect to the ban on soft-money
contributions to national political parties.”
“As a lower court,” he continued, “we of course have no authority to do
Judge Kavanaugh noted that recent developments had left political
parties in a comparatively weakened position.
“Under current law,” he wrote, “outside groups — unlike candidates and
political parties — may receive unlimited donations both to advocate in
favor of federal candidates and to sponsor issue ads. We recognize” the Republican National Committee’s “concern about this
disparity, which, it argues, discriminates against the national
political parties in political and legislative debates. But that is an
argument for the Supreme Court or Congress.”
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