One of the key aspects of the McCain-Feingold law was the elimination of soft money to the national party committees (that is, the DNC, RNC, and each party’s congressional and senatorial committees). Reformers (and some corporations that resented being hit up by the parties for donations) praised this aspect of the law and others bemoaned the loss of influence of the parties.
Although outside groups tried to fill the void, they could only accept unlimited sums from individuals and corporations if they refrained from expressly advocating for or against candidates. After Citizens United and the cases that followed, which allowed independent expenditure only committees, the gloves came off, and the independent groups were permitted to raise unlimited individual and corporate funds. This further tipped the scales away from the parties, which could collect only limited personal contributions.
Although some states allow for corporate contributions to their party committees, many do not, and a similar situation arose for state elections. There were signs that party leaders around the country were forming independent expenditure committees that were ostensibly separate from the party, even though they had some overlapping leadership. The Tenth Circuit blessed such an arrangement late last year. In its opinion, however, the court cautioned that it did not think a party committee itself could create its own independent expenditure account. It reasoned that because courts have upheld restrictions on contributions to party committees to prevent corruption, an independent expenditure effort by the party would still be an effort by the party and could be regulated.
A decision from the Colorado Secretary of State may portend a slight change. Colorado currently prohibits corporate contributions to both candidates and parties and places limits on the amount that individuals may give. The Colorado Republican Party filed a petition with the Secretary of State asking whether it could create an independent expenditure committee. The Secretary answered yes, it could. In the opinion, the Secretary explained how the independent expenditure committee would have to operate so as to avoid coordination with the party. It went so far as to suggest that there may have to be limits on the party’s ability to remove the independent expenditure committee’s leadership. Moreover, officers and agents of the party who are not in the independent expenditure committee may not solicit corporate and unlimited contributions for the independent effort.
This opinion (which is not controlling on the courts, where enforcement cases are ultimately decided in Colorado) is an incremental change. Although others will likely use this opinion to try to open the doors in other states, it seems that at the end of the day, it will probably still be easier for party insiders to create organizations that are separate from the party. Time will tell. At the national level, it probably will not have much of an impact. Although the national parties operate independent expenditure efforts, those efforts are still subject to contribution limits. Short of major litigation, they will remain subject to those limits.