The Constitutionality of a Soft Money Ban after Colorado Republican Ii
Posted: 11 Jan 2002 Last revised: 25 Jul 2013
Congress has not enacted major campaign finance reform since 1974, when it passed amendments to the Federal Election Campaign Act (FECA). After years of failed attempts to adopt a new regulatory scheme for federal campaign financing - or at least to significantly tweak the existing scheme - Congress came closest to this goal in the first half of 2001. The centerpiece of proposed legislation with the greatest chance of passage, known informally as the "McCain-Feingold bill" in the Senate and the "Shays-Meehan bill" in the House, is a ban on "soft money" contributions to political parties. Soft money is money raised to influence the outcome of federal elections but not currently subject to FECA limitations.
This Article explores whether a soft money ban would be constitutional in light of the Supreme Court's most recent campaign finance case, Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado Republican II). In Colorado Republican II, the Supreme Court upheld a provision of the 1974 FECA amendments limiting the amount of so-called "hard money" political parties could spend in coordination with candidates. Hard money is money raised to influence the outcome of federal elections that is subject to FECA limitations.
Colorado Republican II makes it very likely that the Supreme Court, as currently constituted, would uphold a soft money ban. However, if even one member of the 5-4 majority in Colorado Republican II leaves the Court, the ban's constitutionality (and for that matter, the constitutionality of much existing campaign finance regulation) would be much more uncertain.
In Part I, I review the legislative, judicial and administrative developments that led to the emergence of soft money and briefly explore the role that soft money plays in the financing of federal elections. In Part II, I explain how the current Supreme Court likely would analyze whether a ban on soft money violates the First Amendment's rights of free speech and association. In this part, I show that the Court has allowed campaign contribution limits to prevent corruption and the appearance of corruption. I then explain how Colorado Republican II strengthens the argument that a soft money ban is constitutional because the majority in the case recognized that parties sometimes serve as conduits for corruption between wealthy donors and candidates or elected officials.
Finally, I respond to two arguments that have been made against the constitutionality of a soft money ban. The first argument, made initially by Professor (and now FEC commissioner) Bradley Smith and later endorsed by the Washington state supreme court and a federal district court in Alaska, states that a soft money ban is unconstitutional because the money raised with soft money pays for political activities protected by the First Amendment. The second argument, by Senator Mitch McConnell, states that a soft money ban is unconstitutional because it singles out national political parties for discriminatory treatment. Neither of these arguments is well taken, especially following Colorado Republican II.
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