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NATIONAL REPUBLICAN SENATORIAL COMMITTEE v.
FEDERAL ELECTION COMM’N
KAGAN, J., dissenting
play. So Congress, sensibly enough, limited parties’ coordinated expenditures. By thus preventing circumvention of
the basic contribution limits, Congress protected those limits’ capacity to suppress corruption.
But today, the Court rewrites the rules, to allow circumvention of the contribution limits. The majority invalidates
Congress’s restriction of coordinated expenditures, thus enabling a party to serve as an alternative checking account
for a campaign. As a result, a donor will be able to give a
party as much as half a million dollars (as compared to the
$7,000 he can give directly to the candidate) to cover the
candidate’s bills. And the candidate can seek just such a
donation. So the Court ushers back in the same opportunities for quid pro quo corruption that the contribution limits
were meant to check.
Contra the majority, nothing in the First Amendment
mandates that outcome—as indeed this Court has held before. The First Amendment permits campaign finance restrictions that are narrowly tailored to protect against quid
pro quo corruption and its appearance. Caps on a party’s
coordinated expenditures pass that test with flying colors.
The caps prevent easy circumvention of contribution limits;
and so the former, as much as the latter, are needed to avert
corrupt deals between candidates and their supporters.
That is not my personal theory. It is (now was) the Court’s.
Twenty-five years ago, in a case called Colorado II, the
Court considered—and rejected—the same arguments it
finds irresistible today. See Federal Election Comm’n v.
Colorado Republican Federal Campaign Comm., 533 U. S.
431 (2001). The majority must overrule Colorado II to arrive at its outcome—so, once again, disregards and disrespects the core legal principle of stare decisis. But there is
a yet more important point here for the American political
system: that the majority, also again, jettisons a rule
needed to protect our democracy’s integrity. With respect,
I dissent.
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