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On the one hand there are federal political action committees (PACs) -- folks getting together to raise money for and contribute money directly to political candidates.  There are contribution limits in terms of how much they can raise per-source ($5000, whether it's a person, another PAC or party committee) and in terms of how much each can directly contribute to a candidate -- $5000.

On the other hand are independent expenditures -- the right of an individual to spend unlimited sums of her own money to speak (and advertise) in support of a candidate's election, so long as these communications are truly independent from and not coordinated with the campaign.  It's these communications which the Citizens United decision have allowed corporations to make on the federal level as well.

But that's an individual right.  If a group of people wanted to form a committee together to finance independent expenditures, and not to make direct contributions to candidates, should the limits which apply to PACs apply to them?

Today, a unanimous en banc opinion of the DC Circuit (i.e., all nine judges) held that such contribution limits cannot apply to such speech-only committees, though registration and disclosure requirements do.

The proposed entity is called "SpeechNow.org" and it stated that its members would want to spend money on behalf of pro-free speech candidates (of course).  Here's what the Court said:

[T]he only interest we may evaluate to determine whether the government can justify contribution limits as applied to SpeechNow is the government’s anticorruption interest. Because of the Supreme Court’s  recent decision in Citizens United v. FEC, the analysis is straightforward. There, the Court held that the government has no anti-corruption interest in limiting independent expenditures....

The Citizens United Court retracted [previous Supreme Court views] of the government’s interest, saying that “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.” The Court returned to its older definition of corruption that focused on quid pro quo, saying that “[i]ngratiation and access . . . are not corruption.” Id. Therefore, without any evidence that independent expenditures “lead to, or create the appearance of, quid pro quo corruption,” and only “scant evidence” that they even ingratiate, id., the Court concluded that independent expenditures do not corrupt or create the appearance of corruption.

In its briefs in this case, the FEC relied heavily on [the McConnell decision upholding McCain-Feingold], arguing that independent expenditures by groups like SpeechNow benefit candidates and that those candidates are accordingly grateful to the groups and to their donors. The FEC’s argument was that large contributions to independent expenditure groups “lead to preferential access for donors and undue influence over officeholders.” Whatever the merits of those arguments before Citizens United, they plainly have no merit after Citizens United.

In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption. The Court has effectively held that there is no corrupting “quid” for which a candidate might in exchange offer a corrupt “quo.”

We should be clear, however, that we only decide these questions as applied to contributions to SpeechNow, an independent expenditure–only group. Our holding does not affect, for example, § 441a(a)(3)’s limits on direct contributions to candidates.

SpeechNow agreed that it would comply with the disclosure rules that pertain to others make independent expenditures -- data on contributors, information on which candidates are being supported/opposed, reporting within 24 hours any expenditures greater than $1000 made with the last 20 days before an election, and reporting within 48 hours any expenditures or contracts for expenditures of $10,000 or more made at any other time.

What they didn't want to have to do was register as a PAC as well, which would also require designating a treasurer, retaining records, and filing with the FEC as soon as $1000 came in.  But as to that, the Court rejected their arguments and will force them to register:

We cannot hold that the organizational and reporting requirements are unconstitutional. If SpeechNow were not a political committee, it would not have to report contributions made exclusively for administrative expenses. But the public has an interest in knowing who is speaking about a candidate and who is funding that speech, no matter whether the contributions were made towards administrative expenses or independent expenditures. Further, requiring disclosure of such information deters  and helps expose violations of other campaign finance restrictions, such as those barring contributions from foreign corporations or individuals. These are sufficiently important governmental interests to justify requiring SpeechNow to organize and report to the FEC as a political committee.

Okay, so what does this mean?  It stands to reason that the ability to form committees to finance independent expenditures will empower the wealthy -- and given Citizens United, this inevitably includes corporations -- to join together outside of candidates and outside of the national parties to engage in messaging. Folks encumbered by the $30,400 annual limit to the DNC/RNC (and $115,500 overall biennial limit to PAC/candidate direct contributions) now have another outlet for their political influence that's going to be a lot easier now that they can join speech committees rather than do it themselves.

As for the political parties, there was a separate opinion by a three-judge panel in DC today, and in the interests of brevity I'll let others explain:

A federal court Friday denied a Republican Party bid to raise soft money, the unlimited donations from corporations and individuals banned by a 2002 campaign finance law....

In a case brought by the Republican National Committee, a three-judge panel of the U.S. District Court in Washington said it lacks the authority to overturn a Supreme Court ruling that upheld the ban on soft money fundraising by national party committees. That ban is a cornerstone of the so-called McCain-Feingold law and one of the few major parts of the law to survive court challenges.

The RNC had argued that it should be able to raise soft money for state elections, congressional redistricting, legal costs and other activities that it said had nothing to do with federal elections. The Federal Election Commission contended the soft money ban should be upheld.

Originally posted to Daily Kos on Fri Mar 26, 2010 at 12:30 PM PDT.

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