39
evidence that a particular type of financial transaction is
corrupting or gives rise to the appearance of corruption . . . . It
has done so here.” McConnell, 540 U.S. at 185-86 n.72. The
concurrence cites no similar record evidence showing that
non-profits sell access to officeholders and candidates in
exchange for large soft-money contributions.
In our judgment, “McConnell views political parties as
different in kind than independent expenditure committees.”
N.C. Right to Life v. Leake, 525 F.3d 274, 293 (4th Cir. 2008).
We therefore disagree with the concurrence’s attempt to
stretch McConnell’s reasoning from political parties to nonprofits.21
21
The concurrence notes that McConnell upheld § 323(f) of
BCRA, which prohibits state and local candidates and officeholders
from using soft money for communications that promote, support,
attack, or oppose a federal candidate. We fail to see how this
aspect of McConnell justifies upholding limits on non-profits.
McConnell, as we read it, relied in part on the fact that
officeholders, candidates, and parties at all levels share a close
relationship and apparent unity of interest. And the Court also
based its conclusion with respect to state and local candidates and
officeholders – as elsewhere – on “the record in this litigation,” 540
U.S. at 185, emphasizing that “Congress must show concrete
evidence that a particular type of financial transaction is corrupting
or gives rise to the appearance of corruption . . . . It has done so
here.” Id. at 185-86 n.72.
The concurrence also raises concern about the activities of
non-profit committees that are “closely aligned” with federal
candidates. Concurring Op. at 23. But our constitutional analysis
of non-profits applies only to non-connected non-profits. See 11
C.F.R. § 106.6(a); supra note 7. Moreover, expenditures by
individuals or non-profits that are coordinated with a candidate may
be considered contributions to that candidate.