How JD Vance's Supreme Court case could change campaign finance

Recent stories about the parlous state of Democratic Party fundraising have raised an issue regarding a perhaps unnoticed constitutional decision. It appears that some big donors are concerned about how various independent groups spent their money during the last election cycle.

But should the party's nominee try to do better next time around — for example, by arranging for one group to invest in state A and another group to invest in state B — the campaign would run afoul of federal law, which would treat the independent group's "consultation" and "cooperation" as illegal campaign contributions.

However, that well-understood restriction might soon become much less restrictive, depending on how broadly the Supreme Court rules in the case of National Republican Senatorial Committee v. Federal Election Commission, which was recently added to the court's December oral argument calendar. The case involves a lawsuit filed by, among others, the NRSC and then-Senator JD Vance, challenging the Federal Election Campaign Act's limits on how a federal candidate may coordinate spending with their own party. The plaintiffs argue that the rules violate the First Amendment. The U.S. Court of Appeals for the Sixth Circuit rejected the claim, but only because the Supreme Court has yet to overturn an old controlling precedent that few legal scholars still consider good law.

The Supreme Court will almost certainly overturn that precedent and rule in favor of the plaintiffs. A series of First Amendment rulings over the past two decades has progressively limited the government's authority to regulate campaign spending, restricting it to situations involving corruption or the appearance of corruption.

Now, for me, as a free speech advocate, that's obviously the right answer. If political party committees, in the Sixth Circuit's words, "wish to obtain input about their campaign advertisements from the candidates they support in order to unify their political message," they are engaging in an exercise of classic First Amendment rights. It's hard to find even a whiff of corruption.

The usual argument against coordination — the one that was made back when the post-Watergate Congress was busily adopting reforms — is that if candidates are allowed to work with their political parties to decide who will pay for what, contribution limits will become meaningless. Money is fungible, so if Billionaire Bob has given the maximum to Candidate Carla's campaign but then gives more to the party, and if the party can coordinate directly with Carla about who's paying for what, then Bob has, wink-wink, gotten around the rules.

But that argument never made sense. The corruption risk isn't about who pays for the hotel or the auditorium; it's about Carla knowing that Bob has given a lot of money — whether to the campaign or the party. And if what we fear is the corruption that comes from the candidate's knowledge of how much money well-heeled supporters have contributed, we should regulate not the expressive act (the giving) but the potentially corrupting act (the candidate's knowledge).

How do we do that? One possibility I like is a proposal made some years back by my colleagues Bruce Ackerman and Ian Ayres — that, just as we have a voting booth where a secret ballot is cast, we might create what they call a "donation booth" where secret contributions are made. A candidate's supporters would be free to give as much as they wish, but it would be against the law for the campaign committee to tell the candidate who has given or how much.

The proposal has notable advantages. For one thing, the fact that the contributions remain secret would largely shield supporters who prefer to remain anonymous from the obloquy and ostracism that, in our increasingly polarized era, often follow donating to the "wrong" candidate.(1) And if you're concerned that Billionaire Bob might still cozy up to Candidate Carla to brag about how much cash he's contributed to the campaign, consider this: Bob can boast all he wants, but he would have no legal way to prove he's given a single penny.(2)

Don't get me wrong. I'm not in favor of huge campaign contributions. I'm not in favor of small ones, either. Truth be told, were I designing a more perfect union, I'd return to the peaceable tradition of the early republic, when it was considered unseemly for candidates for high office to stump for votes. In fact, it was not unusual for a presidential nominee to remain out of public sight until Election Day.

But we're a big country, with a federal establishment whose annual budget approaches $7 trillion. With all that largess at stake — and, as we've lately been reminded, so much power as well — of course, parties and candidates will spend fantastic sums to gain control. No doubt some regulation is needed, but it must be consistent with the First Amendment.

All of which brings us back to the disgruntled Democratic donors I mentioned at the outset, who seem to believe the party's 2024 campaign would have gone better had Kamala Harris' campaign been able to coordinate more effectively with independent groups. That's a different part of the statute and a different set of regulations than those at issue in Vance's case. If I'm right, and he prevails, maybe the majority opinion will be narrowly tailored to the facts. But it isn't hard to imagine a broader ruling that goes much further — one that breaks down legal barriers to communication between candidates and the groups that support them, and significantly broadens the scope of free speech.

(1) Although the Supreme Court has generally upheld requirements that campaign contributions be disclosed, it is reasonable to wonder, in light of recent precedent, whether the Justices would today sustain compelled disclosure of campaign contributions against a First Amendment challenge.

(2) If you're worried that Bob will just go ahead and break the law, that same reservation would apply to any campaign regulations.