18
NATIONAL REPUBLICAN SENATORIAL COMMITTEE v.
FEDERAL ELECTION COMM’N
Opinion of the Court
enough to override the First Amendment and justify limits
on political party speech.
Amicus and intervenors also assert that the earmarking
rules are often toothless because “violations are essentially
impossible to discover and prove.”
Brief for CourtAppointed Amicus Curiae 44. But there is no good reason
to think that the Government cannot detect a donor who
tries to make a disguised large contribution to a particular
candidate by funneling it through a contribution to a party.
See Reply Brief for Federal Respondents 18–19. Especially
given the companion disclosure requirements, those kinds
of contributions will be easy enough for the Government to
identify and, if warranted, investigate as possible
earmarks.
Moreover, to the extent that amicus and intervenors are
suggesting that earmarking rules go unenforced or underenforced, that problem primarily is one of sufficient
investigative resources and enforcement priorities by the
Executive Branch. But a purported lack of Government
(Executive) enforcement of campaign finance restrictions is
not an excuse for the Government (Congress and the
Executive) to turn around and enact legislation that would
broadly suppress speech and sweep aside the First
Amendment. As JUSTICE THOMAS explained: “Vigilant
enforcement” of the earmarking rules is a more “precise
response” by the Government to any “circumvention
concerns.” Colorado II, 533 U. S., at 481 (dissenting
opinion).
For those reasons, McCutcheon relied on the earmarking
rule in explaining why the aggregate contribution limits at
issue there were unnecessary to prevent circumvention.
572 U. S., at 201–202, 210–212, 215, 222–223. So too here.
With regard to the disclosure rules, amicus and
intervenors question whether they are a sufficient
substitute for political-party coordinated-expenditure
limits. But as McCutcheon outlined, modern technology