24
expenditures; (2) those that only contribute to candidates; and
(3) those that make independent expenditures and contribute
to candidates. Such political committees are, in the court’s
view, entitled to raise and spend “unlimited money” for
advertisements, get-out-the-vote efforts, and voter registration
drives. Maj. Op. at 26. If these hybrid committees contribute
to federal candidates, they must use hard money, says the
court, but all other spending can be with soft money.
This novel argument is not without considerable charm,
but one must read Cal-Med with a squint to see that holding.14
There is no indication in Cal-Med that the committee did not
make independent expenditures, but the Court still sustained
the statute, without announcing the distinction the court draws
today. The Court has consistently cited Cal-Med for the
unqualified proposition that it is constitutional to limit
contributions to multicandidate committees. See, e.g., FEC v.
14
The court relies heavily on Justice Blackmun’s concurring
opinion in Cal-Med, arguing that it is controlling. But the opinion
is controlling, if at all, only for “points that can be said to be fairly
subsumed within the reasoning of the plurality.” John C. Eastman,
Strictly Scrutinizing Campaign Finance Restrictions (and the
Courts that Judge Them), 50 CATH. U. L. REV. 13, 37 (2000); see
Marks v. United States, 430 U.S. 188, 193 (1977). This circuit has
clarified it is only the narrowest opinion’s overlap with the broader
opinion that counts. “Marks is workable—one opinion can be
meaningfully regarded as ‘narrower’ than another—only when one
opinion is a logical subset of other, broader opinions. In essence,
the narrowest opinion must represent a common denominator of the
Court’s reasoning; it must embody a position implicitly approved
by at least five Justices who support the judgment.” King v.
Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). Presumably
then, the controlling part of Justice Blackmun’s opinion is the
holding that the FEC may constitutionally regulate contributions to
fund independent political expenditures without contravening the
First Amendment—no more and no less.