Will Campaign Finance Law Trump Delegate Autonomy?
|Topics:||Federalism & Separation of Powers • Free Speech & Election Law|
|Sponsors:||Telecommunications & Electronic Media Practice Group|
In April, my colleagues at the Pillar of Law Institute were approached with informal questions about delegate autonomy at national political conventions. As proponents of free speech and, equally importantly, free association, we are not ones to meddle in the affairs of any political party other than to say political parties are subject to their own internal governance.
But this is controversial, because the presumptive presidential nominees of both major parties are heading into their respective national conventions with less-than-overwhelming support. What if a party’s delegates decide to go with someone else? Politically contentious, certainly, but it is not something the law can constitutionally prevent.
And what if the law leaves delegates exposed to baseless retaliation with limited recourse?
Federal campaign finance law has governed delegates since the 1970s, and (somewhat surprisingly) allows individuals to contribute unlimited sums to convention delegates (which has not been a boon to delegate fundraising). However, the law’sbroad corporate contribution ban includes delegates and does not feature the exceptions recognized for candidates for federal office, such as allowing in-kind contributions for certain legal services.
Although delegate autonomy might be an issue at both conventions, it is this year’s Republican convention that drives home the risks of advocating or simply educating on behalf of autonomy under the federal corporate ban. Donald Trump, the presumptive Republican nominee, has a rather litigious history, which includes baseless defamation lawsuits. If Trump were to threaten or bring a lawsuit against convention delegates with whom he disagrees, Pillar—a nonprofit corporation—would be prohibited from providing free legal services to fight back, lest both the organization and delegates in question be charged with facilitating illegal in-kind corporate contributions. This violation could lead to civil penalties from the Federal Election Commission (FEC) or, more chillingly, criminal cases brought by the Department of Justice.
The ban is so broad that Pillar cannot even give books to delegates that discuss the issue of delegate autonomy; these are also illegal in-kind corporate contributions.
Simple, non-partisan advocacy and educational activities are banned under federal law, hindering the free speech and associational rights of delegates and Pillar. Not ones to take speech bans lightly, we sued the FEC earlier this month on behalf of Pillar and two Republican delegates—and recently filed for a preliminary injunction—aiming to overturn or significantly curtail this ban before the Republican Convention in July.
One might counter that this ban is not a serious threat; after all, in my personal capacity I could provide unlimited legal services to any delegate and any number of books, so long as these are not paid for with Pillar’s funds. That might help the delegates, but does nothing for Pillar or similarly situated nonprofits, and would be casually indifferent to the supposed ends of campaign finance reform. In this case, the ban serves only to cut off resources and expertise that may be used to educate and defend citizens participating in the American experiment.
The coming party conventions may be quite heated, or they may end up being little more than fanfare for the presumptive nominees. In any event, the ironies of campaign finance law continue to abound and astound, all too often serving to wall off American democracy from average citizens and to protect powerful interests.