Platner Shows Why the Supreme Court Was Right on Campaign Spending

T he Supreme Court’s decisions on other hot-button issues may get more headlines — even here at National Review — but few rulings this term are apt to have effects as far-reaching as Justice Brett Kavanaugh’s opinion for a 6–3 majority in National Republican Senatorial Committee v. Federal Election Commission. The Court struck down on First Amendment grounds the long-standing campaign finance laws limiting the amount that political parties could spend in coordination with campaigns. The Court’s decision is a logical extension of its First Amendment principles on free speech and association in the campaign context.

The latest Graham Platner controversy shows why the Court’s decision is a good thing. Strengthening the political parties could not come at a better time, after a quarter century of legal, social, and technological developments that have systematically weakened the parties relative to outside groups and direct online small-dollar fundraising. Strong parties are especially useful when the interests of morally bad or mentally feeble candidates conflict not only with the interests of the public but also with the interests of their parties. The NRSC decision fortifies the power that Democrats have to run Platner out of the race. In the long run, we should want both parties to have and exercise that power.

In the half century since its landmark campaign finance decision in Buckley v. Valeo (1976), the Court has repeatedly upheld the core free speech principles of Buckley, while struggling to make sense of how those principles could be squared with the campaign finance regulation limits that survived Buckley or were enacted in its aftermath, such as in the 2002 McCain-Feingold bill. The Buckley suit was, of course, brought by James Buckley, then a senator from New York who got elected outside of the two-party system on the Conservative Party line. At the time, the two major parties were immensely powerful, and the chief criticism of the campaign finance system was that it entrenched parties and incumbents at the expense of dissenters and iconoclasts.

Ironically, showing how far that dynamic has shifted, the NRSC suit was brought by then-Senate candidate JD Vance — the unlikeliest ally of a crusade long championed by Mitch McConnell. But then, Vance in 2022 (when he filed the case) had great need of help from the national party organs.

Buckley held that the First Amendment protects campaign spending, whether it’s by campaigns, parties, or outside speakers. Subsequent decisions (including the much-misunderstood Citizens United) have extended that thinking specifically to outside corporations and political action committees.

Even treating campaign finance regulation as what it is — a limitation on core political speech that can be constitutional only if is narrowly tailored to meet a compelling government interest — Buckley allowed legal limits on contributions by particular donors to particular candidates. The spectacle of a candidate being wholly bankrolled by one donor, or a few donors, seemed to the Court to present a sufficient appearance of corruption to justify the limitation of political speech. But that line and its logic have led to some difficult questions then and in later cases. The Court let tycoon candidates self-fund, on the theory that you can’t be corrupted by your own money — but that gave self-funders an advantage. It allowed donors to give unlimited amounts to politics in general, so long as they abide by limits on contributions to particular candidates. It let candidates lend unlimited amounts of money to their campaigns and let the campaigns repay them. And it let parties spend as much as they want — just as anyone else can — in a particular race so long as they don’t coordinate those expenditures with the candidates.

The theory of limiting coordinated expenditures was twofold: that coordinated expenditures are de facto contributions to a campaign, and that donors who could make unlimited contributions to a party as a whole could evade the individual campaign contribution limits by giving to the party to spend in ways coordinated with the campaign. The Court thus upheld the caps in Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) (“Colorado II”).

In practice, not only was Colorado II in tension with the overall thrust of the Court’s decisions on political speech, but it also created two problems. One was the fiction of parties and their own candidates pretending not to know what the other is doing. There were all sorts of workarounds for this kind of thing (such as one releasing long stretches of uncut “B-roll” footage that the other could use, or doing other kinds of in-public maneuvers with small ad buys or polling releases that could be read as directional signals). In general, the law should discourage that sort of society-wide fraud rather than require it.

The more systemic problem is that all of this puts the parties at a disadvantage at a moment when the parties are under a ton of other cross pressures from populist movements and candidates who build their own independent personality-driven donor bases. That encourages politicians to compete as independent actors in the attention economy on cable and social media rather than as team players working toward common goals such as enacting a legislative agenda.

Kavanaugh and the majority finally called an end to the charade. The Court noted “the important and traditional role of political parties during campaigns,” and that “parties and candidates have traditionally coordinated during campaigns.” That coordination, Kavanaugh added, quoting Justice Clarence Thomas’s dissent in Colorado II, “has formed ‘the essence of our Nation’s party system of government.’” The First Amendment isn’t supposed to outlaw democracy.

Nor should courts err on the side of regulation when speech and democracy are at stake:

In this campaign finance context, determining how much regulation is enough to serve the Government’s asserted interest is not a scientific exercise. But in light of the First Amendment free-speech rights at stake, courts must be particularly vigilant. Courts cannot simply say, “what’s the harm in allowing just one more regulation” when that regulation would limit freedom of speech. On the contrary, courts must preserve and protect the freedom of speech guaranteed by the Framers. Necessary, narrowly tailored, and disproportionate may be technical legal terms, but they help ensure that courts appropriately respect the bedrock First Amendment principles at stake.

The appearance of influence is no longer a permissible justification to restrict campaign speech: “The Court now recognizes only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption (quotation and citation omitted).” And that means quid pro quo, not just a general concern about money in politics. Moreover, as the Court observed, the internet makes donations much more transparent than they were in 2001, let alone in 1976.

Kavanaugh noted how the Court’s own decisions had harmed the power of the parties, undermining its concern in Colorado II about “parties’ capacity to concentrate power to elect”:

Since 2001, political parties’ relative power has substantially diminished in comparison to outside groups. Colorado II contributed in part to that shift: The political-party coordinated-expenditure limits impose a stifling effect on the ability of the party to do what it exists to do. . . . Meanwhile, donors can and do send their funds to Super PACs and other outside groups that have a First Amendment right to receive and spend unlimited money to support their independent political speech. . . . In the 2024 election cycle, PACs raised over $15.7 billion, as compared to $2.7 billion by political parties. . . .

To uphold the political-party coordinated-expenditure limits here could therefore help consign political parties to continued second-tier status as compared to outside groups. Weakened political parties distort the political system. And in the views of many, the relatively diminished political parties have ushered in increased political polarization and fragmentation. For that reason, many who generally support campaign finance restrictions have called for elimination of the political-party coordinated-expenditure limits. [Quotations and citations omitted.]

Strong, healthy parties are good; they provide the mechanisms for collective action among coalition partners and at least something resembling principled thinking and a consistent brand in the public mind that makes democracy workable in a continent-spanning republic. As the NRSC wrote in the aftermath of the decision (the quotation that follows is from a Washington Reporter summary of the memo), this gives the parties a lot of advantages they had long been denied:

Before today’s ruling, much of the NRSC’s spending was legally handicapped. If a committee wanted to invest more than $4 million into a single race, that additional spending had to be routed through an independent expenditure. . . . “Every additional dollar spent had to be spent independently: no strategic conversations with the candidate, no shared ad scripts, no joint media planning. That created waste, duplication, and misaligned messaging,” the memo states. . . .

The NRSC can now “work hand-in-hand with our candidates on every aspect of paid communications — TV, radio, digital, streaming, and mail — with full strategic alignment.” . . .

Coordinated spending allows campaigns and party committees to buy TV, cable, and radio ads at the lowest legally available rates during campaign season. Outside groups, including super PACs, typically pay far higher rates for the same airtime. That means an NRSC political budget can now carry substantially more buying power than comparable outside spending.

The heart of the Court’s decision, however, was its rationale for abandoning the worry about circumvention of the campaign-donation limits by donations to parties — a rejection likewise grounded in realism:

The donor gives money to a political party, not to the candidate. That distinction is significant. . . . After the donor has contributed to the party, the party is legally and practically free to use the funds as it sees fit—presumably supporting the candidates who have the best chance of success, are locked in the closest races, or align the most with the party, among other possibilities. The party need not spend the money on the candidate of the donor’s choice.

It is of course true that parties and their candidates often work closely together. . . . That is the nature of political parties and campaigns. But their interests are not identical. The party’s interests are broader and more dispersed. Often, the party will simultaneously focus on numerous candidates, policy proposals, ballot initiatives, get-out-the-vote activities, advertising efforts, and the like—not simply the campaign of one candidate. If the donor’s contributions to a political party are subsequently rerouted to a particular candidate, such action occurs at the initial recipient’s discretion—namely, the political party’s, not the donor’s. [Quotations and citations omitted.]

That’s exactly what’s happening now to Graham Platner. Platner, whose fundraising is apparently quite weak, needs money from the party if he expects to be competitive. The party has an enormous incentive to fund the Maine Senate campaign — but it’s not an incentive to fund Platner. If a substitute candidate has a better chance of winning the race, the party has every reason to use the leverage it has from its control of funds in order to squeeze Platner out of the race and ensure a competitive election with both parties represented. (Much as I loathe the Democrats’ gamesmanship in substituting candidates mid-election, it would be healthier for the country if both parties had a freer hand in replacing disaster candidates.) If Platner refuses to withdraw and the bottom falls out of his race, the party has every reason to prioritize spending on more competitive states over Maine. And if donors across the country don’t feel qualified to vet guys like Platner based upon a one-line bio and a 30-second clip of them on social media, they can entrust their money to the party in order to ensure that it is spent in the best interests of the party’s causes, rather than in the self-interest of one guy who turns out to be working against those interests.