Tomorrow the Supreme Court will hear oral argument in National Republican Senatorial Committee v. Federal Election Commission, a case in which the justices will consider whether limits on coordinated campaign expenditures by party organizations violate the First Amendment. As I wrote in my analysis of the case, those limits mark another unconstitutional attempt by Congress to ration political speech under the guise of trying to fight corruption or “level the playing field.”
Part of the urgency of this case stems from the need to explicitly overrule a lingering precedent, Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001), in which the Court narrowly rejected a facial challenge to coordinated spending limits for parties. In the nearly quarter-century since that 5–4 ruling, the Court has fundamentally reshaped campaign finance jurisprudence, putting the earlier ruling increasingly at odds with the Court’s modern First Amendment jurisprudence.
Rather than being narrowly tailored to the prevention of quid pro quo corruption, the restrictions on the books gratuitously force political parties—the engines of democratic accountability—to operate with one hand tied behind their backs, unable to work effectively with their own candidates. That drives money away from accountable party committees toward unaccountable super PACs, weakening the very institutions that could provide transparency in our politics. The Justice Department is refusing to defend the spending limits, but lower court judges who also recognize the statute’s constitutional infirmity need an explicit overruling from the Supreme Court to untie their hands.