Federal earmarking rules and disclosure laws are not adequate alternatives to party coordination limits, according to an amicus brief CREW submitted to the Supreme Court in National Republican Senatorial Committee v. FEC.

In 2022, the National Republican Senatorial Committee (NRSC), National Republican Congressional Committee (NRCC), then-candidate JD Vance and then-Congressman Steven Joseph Cabot brought suit in the Southern District of Ohio, arguing that the Federal Election Campaign Act’s limits to coordinated party expenditures violated the First Amendment. The Sixth Circuit rejected this argument, prompting the plaintiffs to appeal to the Supreme Court. 

The federal law that limits coordinated expenditures is intended to curb bribery by preventing political parties from becoming conduits for big donors to candidates. Twenty years ago, the Supreme Court upheld these limits, reasoning that coordinated expenditures in practice functioned as direct contributions to candidates. Despite that ruling, the NRSC claims that the coordination limit is not necessary because other existing rules are sufficient to prevent donors from exceeding the contribution limit—namely, federal earmarking rules, which ensure that donations to political parties directed toward a candidate are treated as contributions to that candidate, and disclosure laws, which reveal the source and amount of contributions to political parties. However, as CREW’s amicus brief explains, earmarking rules and disclosure laws cannot prevent all quid pro quo corruption that could occur through coordinated expenditures. 

The brief describes six cases that expose the limitations of earmarking rules. In these cases, donors secretly earmarked funds for specific candidates, and the recipients failed to subject them to earmarking rules. In two of those cases, the recipients disclaimed the donors’ intent, asserting that the recipients retained hypothetical discretion over the funds. However,  the recipients then took the funds and spent them as directed, meaning the funds were functionally earmarked, while treated as un-earmarked funds. These cases only came to the public’s attention, moreover, because a whistleblower came forward or the recipient engaged in misconduct that initiated an investigation, ultimately demonstrating that earmarking can be done in secret, leaving the public with no way to monitor compliance.

While disclosure laws ensure the public availability of campaign contribution data and help voters detect the influence of money in politics, they are not enough to stop corruption before it happens. As evidenced by the brief, earmarking rules can easily be circumvented, demonstrating the need for the Supreme Court to uphold the limits on coordinated party expenditure, just as it did twenty years ago. 

Read the amicus here.

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