26
contributions) would have provided insufficient
justification for such overbroad legislation.
McConnell, 540 U.S. at 152 n.48.
That the Court may have created a doctrinal anomaly
might suggest, as the court argues, see Maj. Op. at 23 n.13,
that it could not possibly have meant what it said, but that is a
hard argument to make. Often cases are in tension as doctrine
works itself pure. Our duty as an intermediate court is not to
tell the Court what it ought to have said, but to abide by what
it did say.
But even leaving aside its treatment of national parties,
McConnell further undermines the court. Recognizing the
dynamic—indeed, Sisyphean—character of campaign finance
law, the Court noted “[m]oney, like water, will always find an
outlet.” 540 U.S. at 224. Upon realizing structural forces
inherent in a republic inevitably create incentives for those
subject to regulation to petition for relief and to campaign
against those who are disinclined to grant it, the Court did not
retreat to a more manageable and less burdensome “quid pro
quo” standard. Id. at 296 (Kennedy, J., dissenting). Instead,
after upholding § 323(a), the Court emphasized money would
now “corrupt” federal races by other, more subtle routes, so
Congress, in anticipation of this new corruption, can enact
broad anti-circumvention measures. E.g., id. at 165–66.
Indeed, without pointing to any evidence that local officials
(e.g., county assessors) are connected to federal candidates
(e.g., for President of the United States) or have been used to
circumvent the law, the Court held Congress prophylactically
can regulate them without facially offending the Constitution.
See id. at 184–85. If the First Amendment is flexible enough
to allow regulating local officials because contributions might
flow through them to federal candidates, then why can’t the