Party Contributions and
written as a term paper for a course in Federal Election Law at New York
University School of Law, this article was given as a paper at the 1983
annual meeting of the American Political Science Association and then
published in Pace Law Review, Vol. 4, No. 2, Winter 1984, pp. 267-296.
corruption and abuses of the electoral process uncovered during the Watergate
investigations prompted the 1974 amendments to the Federal Election Campaign
Act (FECA) which regulates the financing of federal election campaigns.1
The Supreme Court decided, however, that some of these justifiable reforms
exceeded constitutional bounds. In Buckley v. Valeo,2
a 1976 decision, the Court held that restrictions on campaign expenditures
could not withstand strict first amendment scrutiny, but limitations on
campaign contributions were warranted by the compelling state interest
of preventing the actuality and appearance of corruption.3
What the Supreme Court left unanswered in Buckley is how its rationale
pertains to political parties. Although rhetoric has flowed regarding
the importance of political parties for the democratic process in general
and the electoral system in particular, neither Congress, nor the courts
have analyzed precisely what that role is or how political parties may
differ from other multicandidate committees.
Statutory and Regulatory Background
According to the Federal Election Commission (FEC) there are three types of outlays that political committees can make in support of a candidate, although only two of them are defined by the FECA. These outlays are called "contributions," "independent expenditures," and "coordinated expenditures." Contributions are defined by section 431(8)(A) of the Act as:
This simple definition is followed by a list of fourteen items which are
not to be considered contributions. Those specific to political parties
will be discussed in Part IV. How much a political committee can contribute
to a candidate depends on what kind of committee it is. Section 441(a)
of the FECA6 provides that those qualifying
as multicandidate committees, including party committees, may contribute
up to $5000 per election.7 An exception
is made by section 44la(h) for the Republican or Democratic Senatorial
Campaign Committees which share with their National Committees a joint
contribution limit of $17,500 to a Senate candidate during the year in
which the relevant election is held.8
an expenditure by a person expressly advocating the election or defeat of a clearly identified candidate which is made without cooperation or consultation with any candidate, or any authorized committee or agent of such candidate, and which is not made in concert with, or at the request or suggestion of, any candidate, or any authorized committee or agent of such candidate.9
This definition was added after the Supreme Court in Buckley v. Valeo10 invalidated limits on independent expenditures on first amendment grounds. Congress then sought, as much as possible, to combine the effect of this ruling through this new, narrow definition of independence and through disclosure and reporting requirements.11
Coordinated expenditures are not specifically defined, nor is the term used, in either the Act or the regulations. Instead the FEC employs that term in its other literature12 to refer to section 44la(d) expenditures by the national and state committees of political parties. That section provides:
(1) Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee, may make expenditures in connection with the general election campaign of candidates for Federal office, subject to the limitations contained in paragraphs (2) and (3) of this subsection.
The term "co-ordinated expenditure" appears in the FEC's Guide for Party Committees,14 which explains that these expenditures differ from contributions in that they can be made only in the general election campaign, must be either "in-kind," or, if monetary, must go directly to a supplier rather than through a candidate, and need be reported only by the party committee, not the candidate.15 Only political parties can make coordinated expenditures. Since they can be made in cooperation or consultation with a candidate, they would be deemed contributions if made by any other type of political committee.
Conversely, the FEC has ruled that parties cannot make independent expenditures.
There is no specific authorization for this ruling in the FECA. Although
the language of section 44la(d)(1) which states: "Notwithstanding
any other provision of the law with respect to limitations on expenditures
or limitations on contributions,"16
implies that there are other kinds of expenditures that can be made by
political parties, such as coordinated expenditures, the FEC submitted
to Congress regulation 110.7(b)(4), which prohibits state and national
party committees from making independent expenditures in general elections.17
Initially the FEC had proposed an alternative clause stating that the
presumption that parties could not make truly independent expenditures
should be rebuttable rather than conclusive.18
By the time the third and final version was submitted on August 25, 1976
(and resubmitted the following Spring due to Congress' early adjournment)
this alternative had been removed.19
The FEC has elaborated on this regulation in a series of Advisory Opinions in response to specific requests for guidance -- most frequently from the National Conservative Political Action Committee.24 These judgments have consistently imposed restrictions on proposed activities by independent committees. The FEC appears to be following Congress' lead in using those means not prohibited by Buckley to regulate and limit independent spending. The prohibition against independent expenditures by parties may be open to question.25 The FEC assumes that parties are so closely tied into their candidates that they could not make both coordinated and independent expenditures; that the consultation inherent in one would preempt the lack of consultation necessary to the other. Such an assumption implies that all party committees have the same relationship to the candidates that bear their name. It ignores the very real difference in treatment by the FECA and its regulations of local, state and national party committees. It ignores the fact that many state and local committees have transferred their right to make coordinated expenditures to their congressional campaign committees.26
There is, however, no particular demand by the parties for unlimited independent expenditures. This is partially because the ceiling on coordinated expenditures appears to be greater than the fund raising ability of the parties, and partially because it is not in the interest of the Democratic Party, which still controls the House, to give the Republicans greater spending power. In the 1981-1982 election cycle the Democrats spent $3,195,199 on congressional candidates and donated $1,723,593 to them. The Republicans spent four times more: $14,284,963 in coordinated expenditures and $5,626,216 in contributions.27
The consequence of these FEC interpretations is to create a strange mosaic depending on whether a financial supporter is a party committee or not. Party committees can make contributions and limited but coordinated expenditures. Non-party committees and individuals can make contributions and unlimited independent expenditures. This novel interpretation has both benefitted and hindered parties in comparison with nonparty political committees. It has benefitted them in that more money could be spent in co-operation with a campaign, and thus presumably more efficiently. It has hindered parties in that the unlimited independent expenditures permitted non-party committees are precluded. As will be demonstrated later, this mosaic is complicated further by the different treatment of state, local and national party committees. National party committees are clearly the favored sons and daughters; a favoritism bestowed on them by Congress, elaborated on by FEC regulations and Advisory Opinions, and sanctified by the Supreme Court.28
III. Consequences of the Failure of the Supreme Court to
Apply the Buckley Standards to Political Parties
The source of this mosaic was not congressional deliberation on the manner in which party and non-party committees ought to fit into an overall campaign finance scheme, but the failure of the Supreme Court to address how parties were affected by the criteria of constitutional limitations upon campaign contributions and expenditures. When it distinguished in Buckley v. Valeo29 between campaign contributions, which were permissibly subject to congressional limitations, and independent expenditures, which were not, the Court's decision was restricted to non-party political committees and individuals. Parties were given only a passing mention in two footnotes where the Court claimed that no first amendment challenge had been made by the plaintiffs to "separate limitations for general election expenditures by national and state committees of political parties."30 Footnote sixty-six states:
The Court's decision not to apply the standards of Buckley to the
major political parties was not compelled by a clear reading of the plaintiffs'
brief. Argument III of the brief entitled "[T]he FECA Limitation
on Campaign Expenditures by Political Candidates, Parties or Committees
Violate the Constitution"32
did not single out parties in the general sections of this argument, but
the brief did state that "[w]hat is true of candidates is also true
of political parties and committees."33
Parties were specifically addressed in section E of Argument III entitled
"The Limits Imposed by the FECA Amendments Violate the First and
Fifth Amendments Because They Discriminate Against Certain Candidates
and Parties."34 The thrust of
that section was that "distinctions between various kinds of party
committees, other formal political committees, and informal associations
are unprecedented in American election law and serve no purpose other
than discrimination."35 Nonetheless,
to interpret that thrust as a failure to challenge the ceilings on first
amendment grounds indicates a narrowness more deliberate than accidental.
It implies that the Court has reserved for another time how the standards
of Buckley should be applied to political parties.
The conference substitute is the same as the House amendment and the Senate bill with regard to political party expenditures on behalf of the party's candidates. This limited permission allows the political parties to make contributions in kind by spending money for certain functions to aid the individual candidates who represent the party during the election process. Thus, but for this subsection, these expenditures would be covered by the contribution limitations stated in subsections (a)(1) and (a)(2) of this provision.41
The 1976 amendments created in section 441a(h) separate contribution (not coordinated expenditure) limits of $17,500 for the Republican and Democratic Senatorial Campaign Committees, but not for the equivalent House committees.42 The latter, by omission, are treated the same as any multicandidate committee with a $5000 limit.43 However, the Senate committees share their limits with the national party committees by statute,44 while the House has separate limits from the national committees under regulation 110.3(b)(2)(i).45
One could reasonably interpret this pattern as indicating a congressional intention that each of the main party committees should have distinct, but not cumulative, contribution limits reflecting the size and type of their potential candidate constituency. State and national party committees could each contribute up to two cents per voter or $20,000 to Senate candidates and $10,000 to those for the House.46 The Senate campaign committees could contribute $17,500 to Senate candidates and the House campaign committees $5000 to House candidates.47 Instead, the FEC has increased the spending power of all party bodies by interpreting the limits cumulatively, by distinguishing coordinated expenditures from contributions and by permitting agency agreements. It is only the latter that has been challenged in court.
Agency agreements were the subject of the only case under the FECA on
political parties to come before the Supreme Court, FEC v. Democratic
Senatorial Campaign Committee (DSCC).48
It arose when DSCC challenged in the district court a ruling by the FEC
that there was no "reason to believe" that the National Republican
Senatorial Committee (NRSC) had violated the FECA by acting as the agent
of state republican parties in order to make their allotted coordinated
expenditures under section 441a(d)(3).49
State and Local Political Parties in the Federal Elective
Fostering the active participation of state and local political parties in the federal elective process may not be a compelling state interest in the eyes of the Supreme Court, but it has been a compelling concern of Congress. After the 1976 election, political party leaders complained that the FECA almost completely eliminated state and local party organizations from the presidential campaign. The restrictions on spending imposed by the Presidential Election Campaign Fund Act precluded local party organizations from engaging in the extensive fund raising activities of previous campaigns, and consequently deprived them of a major portion of their campaign activity. These limitations also discouraged the national parties from spending money on the traditional tools of grass-roots politics such as buttons and bumper stickers in favor of the more cost effective media advertising.69
Consequently, in 1979 the FECA was amended to exempt from the definition
of contributions and expenditures the purchase of these traditional campaign
materials for volunteer activities in general elections70
and the conduct of voter registration and get-out-the-vote drives for
presidential candidates.71 The original
section of the FECA has permitted slate cards and sample ballots.72
If parties had been permitted to make independent expenditures, these
amendments might not have been necessary. Parties could have bought an
unlimited amount of grassroots campaign materials as long as they did
not consult with or duplicate those put out by the candidate (which are
deemed contributions under 11 C.F.R. section 109.1(d)(1)).73
They could only have engaged in voter drives or other activities for presidential
candidates up to a cost of $1000 prior to 1980.74
But since the United States District Court of the District of Columbia
ruled in 1980 that the $1000 limitation under section 9012(f) on independent
expenditures by unauthorized (non-party) political committees in presidential
campaigns was unconstitutional, that is no longer true.75
Since that holding, left standing by the Supreme Court in a 4 to 4 split
vote,76 non-party committees can
make unlimited expenditures in support of presidential candidates as long
as they are done independently of the campaign, but local committees of
a candidate's own party, no matter how remote they are from the campaign
itself, can spend very little. Non-party committees can also make expenditures
in primaries.77 Parties are limited
to contributions, and volunteer campaign materials are not exempted from
Prior to the enactment of the 1979 amendments to the Act and the promulgation of regulations implementing those amendments, the described expenditure (not exceeding $1000) by the town committee could have been made in support of the party's nominees for President and Vice President without regard to the limits of 2 U.S.C. 441a(d).... However, the 1979 amendments to the Act and revised (as of April 1, 1980) Commission regulations which clearly delineate the role of subordinate committees of a state party, as defined in 11 CFR 100.14, with regard to Federal elections no longer provide an exemption for such an expenditure by a subordinate committee.81
Consequently, to utilize direct mail, advertising or a general public communication for a presidential or vice presidential candidate a local party committee has to be designated as an agent of the national committee and the expenditure has to be reported by the national committee under its coordinated expenditure limitation. On the other hand, if a local committee wants to distribute the traditional grass-roots materials that are exempted or conduct a voter drive, it cannot do so with materials given it by the national committee, or funds donated by the national committee for that purpose.82 Anything emanating from the national committee is a coordinated expenditure and is counted against those limits.83
Since the national committee is unlikely to supply campaign materials for local use when the money can be more effectively used for media, this regulation does not work to enhance grassroots participation in the democratic process. Furthermore, the combination of regulations, which limit local committees to volunteer campaign materials and also require that the local. committees raise the money for them is not likely to cement the relationship between the national and local party committees. The result of these regulations is to force them to operate as totally independent bodies.
This effect is exacerbated by the regulations84 on voter drives. The exemption for both voter registration and get-out- the-vote efforts is limited to the national ticket in the general election.85 If a voter drive refers to another federal candidate in more than an incidental fashion, the prorated cost is not exempt, but must be counted against either the contribution or coordinated expenditure limits.86 Since these limits are statewide,87 their use is controlled by the state party, which is not required to share with local party committees. Because many states have signed agency agreements with their party's congressional campaign committees,88 local committees may have to get authorization from a national committee to run voter drives for their local federal candidates -- an authorization not required for presidential candidates.89 Alternatively, their state party could agree to count the cost against the state's contribution limit. The limits on contributions from state and local party committees to a candidate are the same as from any other political committee: $5000 per election for a multicandidate committee, and $1000 otherwise.90 However, with a very restricted exception91 the limit is statewide. That is, a state party committee and all of its affiliated committees share one contribution limit, and all local committees are presumed to be affiliated. This interpretation is in the regulations, not in the Act itself.92 The regulations also establish a joint contribution limit for a party's national committee and any political committees "established, financed, maintained or controlled" by it but specifically exempt the House campaign committee.93 Since the national committee and the Senate campaign committee share the much larger contribution limit of $17,500, the consequence is that Senate candidates can receive three and one half times more from their national party than from the state party whose nominee they are, and House candidates can receive twice as much.94
An exception is made for local party committees that are independent of the state party committee. These committees can have separate contribution limits. But the requirements are so stringent that it is unlikely that many exist. To be independent a local party committee not only must not be established by the state party, but cannot have received "funds from any other political committee established, financed, maintained, or controlled by any party unit" or have made any contributions in co-operation or consultation with any other party unit.95 In other words, it can be party committee in name only, without even the rights of non-party political committees to receive contributions from a party and to make independent expenditures.
Not only can the national party committees give more to candidates, but they can receive more from individuals and multicandidate committees. By statute, the state and local party committees can receive $5000 per year, and national party committees can receive up to $20,000 from individuals and $15,000 from multicandidate committees per year.96 However, regulations and advisory opinions have served to significantly reduce the amounts that can be given nationally. In several advisory opinions, the FEC has ruled that not only do the state parties and their local affiliates share a combined limit on contributions made but on contributions received.97 The regulations make the opposite "clarification" for the national committees. A party's national committee, Senate and House campaign committees can each receive the maximum amount a contributor can give to national committees.98 These clarifications were not in the final version issued on August 25, 1976.99 The FEC's official "Explanation and Justification of Regulations" released the following April contains language which implies that the additional wording was a result of congressional pressure.
The consequence of these regulations is that the treatment of state parties
very much resembles that of non-party committees, except for the exemptions
of certain campaign materials and the prohibition on independent expenditures.
In effect, the many party committees in a state are one large committee
as far as the federal election laws are concerned. This is exactly how
the Act treats non-party committees with a diverse and complex organization.100
The treatment of the national party committees is much more favorable.
They are independent units for the purpose of regulating receipts and
disbursements, and the limits on both of these are higher than the limits
for state party committee and non-party committees. Yet national party
committees are treated as affiliated units for the purpose of agency agreements
Buckley Criteria as Applied to Political Party
Nonetheless it is possible to ask if the criteria developed for justifying
limitations on contributions are applicable to parties. The only compelling
state interest the Court acknowledged as legitimate to restrict financial
contributions was "the actuality and appearance of corruption."112
It said this interest was sufficient to overcome first amendment rights
when applied to contributions but not to independent expenditures for
three reasons: 1) "The quantity of communication by the contributor
does not increase perceptibly with the size of his contribution, since
the expression rests solely on the undifferentiated, symbolic act of contributing."113
2) While the "Act's contribution ceilings thus limit one important
means of associating with a candidate or committee, [they] leave the contributor
free to become a member of any political association and assist personally
in the association's efforts on behalf of candidates."114
3) "The absence of prearrangement and coordination of an expenditure
with the candidate or his agent not only undermines the value of the expenditure
to the candidate, but also alleviates the danger that expenditures will
be given as a quid pro quo for improper commitments from the candidate."115
Blacks Law Dictionary defines corruption as
This definition has some meaning in the non-electoral context where an official's salary is paid by the entity to whom loyalty is owed. Money or things of value received from others are automatically suspect.
In the electoral context, money and things of value from others are necessary
to get the job. In order to get them, an elected official looks to those
in whose interest the office holder generally acts. The intent of most
political activists and political associations is to influence the official
acts of elected officials. In this effort the distinction between "influence"
and "undue influence" is not very clear.
[i]f it is reform we are after, why reduce the ability of the political parties to support its candidates? How can the Republican Party unduly influence a Republican candidate? How can the Democratic Party unduly influence a Democratic candidate? On what basis should the ability of the two political parties to support their candidates be prevented?127
This was not challenged. Even the Supreme Court appears to be operating under the same assumption. In FEC v. Democratic Senatorial Campaign Committee,128 where the Court decided unanimously that agency agreements did not promote the appearance or reality of corruption, it stated approvingly that "[a]gency agreements may permit all party committees to benefit from fundraising, media expertise, and economies of scale. In turn, effective use of party resources in support of party candidates may encourage candidate loyalty and responsiveness to the party."129 One does not encourage loyalty and responsiveness to a provider of campaign contributions if the relationship is perceived as potentially corrupting.
Analytically, one should ask what parties would want from candidates in exchange for financial support. Perhaps the parties want nothing. It benefits all party members to have many people bearing the party label in Congress because the majority party has a great deal more power than the minority. Even if parties were to ask for a quid pro quo vote in exchange for campaign contributions, is this considered corruption? In parliamentary political systems, voting the way one is told is usually a requirement for bearing the party's label, let alone receiving campaign contributions. Among political scientists this is called the "responsible parties model" and there is extensive literature urging its adoption in the United States.130
Since political parties would not exist without candidates, at least not as parties, one might also ask whether it is useful to distinguish them from their candidates. The FEC regulations imply that this cannot be done.131 If a party is so tied to its candidates that it cannot act independently in support of them, it would follow that to restrain a party's support is equivalent to limiting the candidate's ability to speak for himself or herself. If a party speaks through its candidates, to deprive it of supporting those candidates is to violate the first amendment's proscription "upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy." 132
One might also take the Court's comparison of parties with campaign organizations a step further. It stated that corruption as a compelling state interest does not apply to campaign expenditures because the danger of candidate dependence on large contributions is preempted by those limitations.133 Since parties do not create their own money -- or earn it -- but must get it under the same conditions as campaigns (albeit with a larger limit), it would seem that unearmarked expenditures on behalf of its own candidates would be similarly untainted. Parties would act as a buffer between candidates and supporters, serving to mute their individual influence. They are not likely to support more than one candidate for a given general election, so there is little chance of their using contributions to insure that the winner is always indebted to them. Instead, insofar as a candidate is representing its party, the party is promoting itself.
By now it should be evident that if corruption is the sole basis for restricting the use of campaign money, the application of the FECA to political parties is anomalous. If parties can corrupt -- however defined -- their candidates, then why treat them differently from other multicandidate committees? Higher contribution or coordinated expenditure limits might pass a rational basis test, since that test requires a minimal threshold, but the prohibition on independent expenditures would not pass first amendment scrutiny. However, if parties cannot corrupt their own candidates there is no constitutional basis for restricting independent expenditures or contributions. If a party's only effective means of political expression is through its candidates, then the "First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise."134
Application of FECA to Political Party: Unfinished Business
Whether or not the Supreme Court ever takes up the unfinished business of applying the FECA in light of Buckley to political parties, one might still speculate on the consequences. If restraints on party support of their candidates were held unconstitutional the effect would most likely be different for each major party, and for each level of party organization.
While congressional rhetoric has not distinguished between national, state and local parties, congressional action has.135 The national party committees are distinctly favored. The amount of money that can be donated to them is much greater than for the state parties, as is the amount that they can spend in candidate support. The treatment of state and local committees as one committee for purposes of receipts, disbursements, and in some cases reporting, discourages independent action by local committees, historically the workhorses of the party system. The treatment of the national committees as independent for purposes of receipts and disbursements, and interrelated for purposes of fund transfers and agency agreements, facilitates their access to resources and independent action.
Furthermore, the definitions of contributions and expenditures, expressed
in the FECA, the regulations and the Advisory Opinions, compel fragmentation
of the aid local committees can give federal candidates by type of office,
election, and kind of support. The paperwork requirements of reporting
and the FEC enforcement procedures, not discussed, are more burdensome136
on local parties than on national committees.
The Committee's early low-key existence was challenged by the 1974 revisions of the Federal Campaign Laws. Most important were the new restrictions limiting an individual's contribution to $1,000 per federal campaign, but up to the maximum of $25,000. The need for a more active Senate campaign committee, to make use of the money it could raise, was made clear by the difficulty individual campaigns had in fundraising, and by the large number of Democratic incumbents the Republicans needed to challenge to gain control.
The 1974 Campaign Act . . . allowed for expenditures on behalf of each Senate candidate up to four cents per eligible voter in his or her state. This "four cent money" breaks down to two cents which state party organizations may spend on behalf of their Senate candidates and two cents which the national party organization may spend. In most states, the state parties assign the right to spend their two cents to the NRSC.... This total "four cent" expenditure can range from $90,000 in less populous states to $1.2 million in California, the most populous state.139
As long as this amount of money continues to be spendable by the national party committees -- and they can raise it -- they will be major determiners of campaign strength regardless of independent expenditures. Instead of just permitting parties independent expenditures if all restrictions were to be removed, the balance might shift. Candidates might have a choice of receiving party money as contributions to be spent as they prefer, rather than on their behalf, and local state party committees would not have any restrictions on their ability to support their candidates. They would not have to worry about allocation, contribution and expenditure limits, refraining from activities which violate the FECA, engaging in fundraising events (which are also party builders) or competing with their state and local party committees for a given individual's contribution.
This kind of shift would be more likely to favor the Democrats than the Republicans because it would remove restraints from that party level where the Democrats are strongest. For many decades the Democratic Party had developed an effective organization only during the immediacy of a campaign year and then mostly confined to the state and local level.140 The most powerful Democratic organizations have traditionally been in major cities while the national party has often been no more than a common label for highly contentious components. The Republican Party developed a substantial national organization which effectively asserted national control while the Democratic Party was building local machines. As many commentators have noted141 increased centralization and nationalization has been a trend in both parties for the last thirty years. This trend has shifted the resources necessary for electoral success from strong local organizations to professional expertise and fund raising ability -- a shift in which the Republican Party has a head start. Removing restraints from state and local party expenditures and increasing the contribution limits to them might counterbalance this trend -- or at least slow it down. This would benefit the Democrats.
Reform has many unintended consequences, and those of the decade's revisions of the federal election laws are still making themselves felt. The impact of these laws on political parties has many anomalies. The business of resolving them is not yet finished.
Buckley v. Valeo, 424 U.S. 1 (1976). Federal Election Campaign
Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (current
version at 2 U.S.C. §§ 431-56 (1982)).
424 U.S. 1 (1976) (per curiam).
In Buckley, the Court struck down as violative of the first
amendment those portions of the Federal Election Campaign Act Amendments
of 1974 which imposed a $1000 ceiling on: (1) independent expenditures
on behalf of a specifically designated candidate; (2) a $25,000 ceiling
on expenditures by a candidate from his or her personal or family funds;
and (3) a limit on aggregate campaign expenditures by any one candidate.
The Court equated political expenditures with political speech and subjected
the direct limitations to the strictest scrutiny. The Court upheld: (1)
a $1000 limitation on contributions by individuals or groups to any candidate
for federal office; (2) a $25,000 limit on the aggregate contributions
that an individual could make annually to all political campaigns; and
(3) a $5000 limit on contributions by political committees. The contribution
limitations were viewed as entailing only a "marginal restriction
upon the contributor's ability to engage in free communication,"
(id. at 20-21), and were thus subjected to less exacting scrutiny.
The state interest in limiting contributions as a hedge against campaign
finance corruption sufficiently outweighed the contributors' free speech
See infra notes 48 67, 75-78, 108-11 and accompanying text. The
Article will focus on congressional elections as the Court held in Buckley
that the presence of public funding of presidential races permits Congress
to condition acceptance of such findings on limitations not otherwise
permitted. While it is the candidate and not the party that accepts the
funds, parties are implicated in those limitations in ways that would
require a different analysis than that applicable to unfunded races because
of the requirement of § 9002(2) of the Presidential Election Campaign
Fund Act, defining a candidate as one who
(A) has been nominated for election to the office of President of the
United States or the office of Vice President of the United States by
a major party, or
2 U.S.C. § 431(8)(A)(i)-(ii) (1982).
Id. § 441a(a)(2)(A).
Id. § 44la(a)(1)(A).
Id. § 44la(h).
Id. § 431(17).
424 U.S. 1 (1976). See supra note 3 and accompanying text.
See H.R. Rep. No. 917, 94th Cong., 2d Sess. 5 (1976).
See infra notes 14 15 and accompanying text.
2 U.S.C. § 44la(d) (1982).
Federal Election Commission, Campaign Guide for Party Committees
9 (March, 1981).
2 U.S.C § 44la(d)(1) (1982) (emphasis added).
11 C.F.R. § 110.7(b)-(c) (1983).
Federal Election Campaign Act Proposed Regulations, 41 Fed. Reg.
41 Fed. Reg. 35,951 (1976) (codified at 11 C.F.R. § 110.7(b)(4)
2 U.S.C. § 438(d) (1982).
Id. § 438(d)(1).
Federal Election Campaign Act Proposed Regulations, 41 Fed. Reg.
11 C.F.R. § 109.1(b)(4)(i)(A)-(B) (1983).
See 80 Op. F.E.C. (1979); 46 Op. F.E.C. (1980).
Federal Election Campaign Act Proposed Regulations, 41 Fed. Reg.
See infra note 103 and accompanying text.
Federal Election Commission, Press Release, Dec. 3, 1983, at 30.
See infra notes 66-69 and accompanying text.
424 U.S. 1, 22 (1976). See also FEC v. NCPAC, No. 83-2823
(E.D. Pa. Dec. 12, 1983).
Buckley, 424 U.S. at 58 nn. 66-67.
Brief for Appellant at 79, Buckley v. Valeo, 424 U.S.
Id. at 85.
Id. at 104.
Id. at 106.
2 U.S.C. § 441a (1982).
S. 3044, 93d Cong., 2d Sess. § 101(a) (1974).
2 U.S.C. § 431(11) (1982).
Federal Election Campaign Act Amendments of 1974, Pub. L. No.
93-443, 88 Stat. 1263, 1265 (codified at 18 U.S.C. § 608(e) (1974))
See supra notes 14-15 and accompanying text.
H.R. Rep. No. 1057, 94th Cong., 2d Sess. 59 (1976).
2 U.S.C. § 441a(h) (1976).
Id. § 441a(a)(2)(A).
Id. § 441a(h).
11 C.F.R. § 110.3(b)(2)(i) (1983).
2 U.S.C. § 441(a)(d)(3)(A)-(B) (1982).
See supra note 43 and accompanying text.
454 U.S. 27 (1981), rev'g 660 F.2d 773 (D.C. Cir. 1980).
Democratic Senatorial Campaign Comm. v. FEC, 660 F.2d 773, 776
(D.C. Cir. 1980).
Id. at 781.
Federal Election Commission Memorandum in Support of its Motion
for Summary Judgment and in Opposition to plaintiff's Motion for Summary
Judgment at 11, Democratic Senatorial Campaign Comm. v. FEC, No.
80-1903 (D.D.C. Aug. 18, 1980).
National Comm. for an Effective Congress v. National Republican
Senatorial Comm., FEC Matter under Review No. 780 (1978); Friends
of Stewart Comm. v. National Republican Senatorial Comm., FEC Matter
under Review No. 820 (1978).
Federal Election Commission Reports on Financial Activity, 1977-78,
Final Report - Party and Non-Party Political Committees at 127. National
441(d)(3) expenditures by the Democratic Party for the 1977-78 election
cycle were only $68,822 and state expenditures were $329,765. Id.
The national committee's assignment of its coordinated expenditure
limits to a congressional campaign committee is not surprising when one
understands the different historical roles of the two committees. The
major parties' national committees have generally focused on presidential
politics with at best weak and informal ties to Congress. D. Ippolito
& T. Walker, Political Parties, Interest Groups, and Public Policy:
Group Influence in American Politics 67, 72-73 (1980). Congressional
campaign committees were established by both parties in 1866 to help their
members get reelected. A. Ranney, Curing the Mischiefs of Faction:
Party Reform in America 17 (1975). Thus they are the more logical
party units to make coordinated expenditures for congressional candidates.
Federal Election Comm., Election Case Law 55-56 (1981).
Id. at 56.
Democratic Senatorial Campaign Comm. v. FEC, 660 F.2d 773, 776
(D.C. Cir. 1980).
Id. at 777.
Id. at 778.
Id. at 779.
Id. at 782 n.37.
FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32
Id. at 41.
Brief for Respondent at 38-39, FEC v. Democratic Senatorial
Campaign Comm., 454 U.S. 27 (1981).
FEC v. Democratic Senatorial Campaign Comm., 454 U.S. at 41-42
35 Cong. Quarterly Almanac 559 (1979).
2 U.S.C. § 431(8)(B)(x) (1982) (Contribution exemption); id.
§ 431(9)(B)(viii) (expenditure exemption).
Id. § 431(8)(B)(xii) (contribution exemption); see also
id. § 431(9)(B)(ix) (expenditure exemption). These exemptions
apply to presidential and vice presidential candidates only.
Id. §§ 43103)(b)(0, (9)(b)(vi).
11 C.F.R. § 109.1(d)(1) (1983).
26 U.S.C. § 9012(f) (1976).
Common Cause v. Schmitt, 512 F. Supp. 489, 501 (D.D.C. 1980).
Common Cause v. Schmitt, 455 U.S. 129 (1982) (per curiam).
2 U.S.C. § 441a(d) (1982); see supra text accompanying
See supra notes 4-8 and accompanying text. See infra notes
81-82 and accompanying text.
87 Op. F.E.C. (1980).
11 C.F.R. §§ 100.7(b)(15), .8(b)(16) (1982).
2 U.S.C. § 441a(d) (1976). See also supra text accompanying
notes 12-15 (discussing the statutorily undefined coordinated expenditure).
See supra text accompanying notes 70-71.
2 U.S.C. § 431(8)(B)(xii)(3) (1982) (contribution); id.
§ 431(9)(B)(ix)(3) (expenditure).
See supra text accompanying notes 49-54.
Id. See also 2 U.S.C. § 43la(d) (1982). The Act contains
no corresponding section for presidential candidates.
2 U.S.C. 441a(2) (1982) (multicandidate $5000 limit); id.
§ 44la(5)(C)(ii) ($1000 limit).
11 C.F.R. § 110.3(b)(2)(ii)(A)-(B) (1983).
Id. 110.3(b)(l)(i), .3(b)(2)(i).
2 U.S.C. § 441a(h) (1982) (Senate limit); id. §
441(d)(3)(B) (House limit).
11 C.F.R. § 110.3(b)(2)(ii) (1983).
2 U.S.C. § 441a(10-(2) (1982).
104 Op. F.E.C. (1976); 39 Op. F.E.C. (1978); 68 Op. F.E.C. (1979);
77 Op. F.E.C. (1979).
11 C.F.R. §§ 110.1(b)(2)(i), .2(a)(ii) (1983).
41 Fed. Reg. 35948 (1976) (codified at 11 C.F.R. § 110.1 (1983)).
11 C.F.R. § 110.3 (1983); 2 U.S.C. § 44la(a)(4)-(5) (1982).
There is one difference. Section 44la(a)(4) provides that, unlike local
parties and non-party committees, a state Party does not have to contribute
to five candidates to qualify as a multicandidate committee. But it does
have to have been registered for six months and have received contribution,
from over 50 persons. Prior to the 1976 amendments, local units of labor
organizations, corporations, etc. could set up separate contribution limits.
The "anti-proliferation" amendments in 1976 reduced the ability
of such special interest groups to contribute to candidates they supported
but they could still make independent expenditures.
See infra note 103 and accompanying text.
2 U.S.C. § 44la(a)(4) (1982).
34 Congressional Quarterly Almanac 769 (1978).
124 Cong. Rec. 7879-80 (1978).
Democratic Senatorial Campaign Comm. v. FEC, No. 80-01903 (D.D.C.
Aug. 28, 1980) (petition filed July 30, 1980). The FEC's motion for summary
Judgment was granted on August 28, 1980. Democratic Senatorial Campaign
Comm. v. FEC, 660 F.2d 773, 776 (1980).
FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 35-36
120 Cong. Rec. 9549 (1974) (proposed amendment no. 1102 to
120 Cong. Rec. 9551 (1974) (Brock Amendment adopted Apr.
3, 1974); 120 Cong. Rec. 10,062-64 (1974) (Clark Amendment, to
repeal Brock Amendment, adopted Apr. 8, 1974).
FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 40
Brief of Petitioner, National Republican Senatorial Comm. at
13-14, FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27
Buckley v. Valeo, 424 U.S. 1, 20 (1976).
Buckley v. Valeo, 424 U.S. 1, 26 (1976).
Id. at 21.
Id. at 22.
Id. at 47.
11 C.F.R. § 110.7(b)(4) (1983).
Buckley v. Valeo, 424 U.S. 1, 22 (1976).
Id. (citing NAACP v. Alabama, 357 U.S. 449, 460 (1958)).