Tuesday, June 14, 2011
Judge Rosemary M. Collyer (D.D.C.) today granted a preliminary injunction in Carey v. FEC to enjoin the Federal Election Commission from enforcing campaign contribution restrictions on the National Defense Political Action Committee (NDPAC), an independent PAC. Judge Collyer ruled that NDPAC's likelihood of success on the merits was high, because the limits violate the First Amendment under Citizens United v. FEC and the D.C. Circuit's rulings in EMILY's List v. FEC (2009) and SpeechNow.org v. FEC (2010).
NDPAC challenged the campaign contribution restrictions in 2 U.S.C. Secs. 441a(a)(1)(C) and 441a(a)(3). Section 441a(a)(1)(C) says that no person shall make contributions "to any other political committee . . . in any calendar year which, in the aggregate, exceed $5,000." Section 441a(a)(3) provides:
During the period which begins on January 1 of an odd-numbered year and ends on December 31 of the next even-numbered year, no individual may make contributions aggregating more than -
(A) $37,500, in the case of contributions to candidates and the authorized committees of candidates;
(B) $57,500, in the case of any other contributions, of which not more than $37,500 may be attributable to political committees which are not political committees of national political parties.
Neither provision distinguishes between independent PACs (on the one hand) and PACs that are associated with, or channel money to, a candidate or a party (on the other).
NDPAC proposed to segregate its contributions into two accounts--one for its independent expenditures (which would not be subject to these limits) and one for funeling funds to candidates or parties (which would be subject to these limits). The FEC balked and would have required that NDPAC establish a new separate PAC to handle its hard money contributions.
Judge Collyer ruled that the case was governed by Citizens United, EMILY's List, and SpeechNow.org. She applied strict scrutiny to the contribution limits and held that they did not serve a compelling government interest for independent PACs (because there's no concern over quid pro quo corruption with an independent PAC) and that in any event they weren't narrowly tailored (because NDPAC's preferred solution of separating its bank accounts was a less restrictive way to satisfy any government interest). She held that NDPAC therefore has a strong likelihood of success on its claim that contribution limits for an independent PAC violate the First Amendment.
The extension of Citizens United to independent PACs, which do not raise the same kind of concerns about quid pro quo corruption that, say, candidate-affiliated PACs raise, is hardly a surprise. The interesting part of this case, instead, is the court's preference for NDPAC's solution (separate bank accounts--one for hard money contributions and one for soft money contributions) over the FEC's apparently preferred solution (separate PACs--one for hard money contributions and one for soft money contributions). Judge Collyer ruled that the FEC's solution was overly burdensome in light of NDPAC's simpler, easier solution. The analysis, if unchanged beyond the preliminary injunction, only makes it easier for hybrid PACs to operate and to accept unlimited contributions for independent expenditures: they'd just need to set up a separate bank account.
[Image: Reforme des differents droits feodaux et de la dime. Le 11 aout 1789. Library of Congress]