The Roberts Court legalized unlimited money laundering through political parties.
Justice Brett Kavanaugh’s majority opinion in NRSC v. FEC — the 6-3 decision striking down federal limits on coordinated spending by political parties and their candidates — reads, at its strongest, as a vindication of two centuries of American political practice. Political parties, Kavanaugh argues, have a First Amendment right to speak in coordination with the candidates they exist to elect, and the post-Watergate limits on that coordination have no constitutional basis. The argument deserves to be taken seriously. The audit shows what is wrong with it.
The steel-man runs as follows. For most of American history, federal law did not restrict what political parties could spend to support their own candidates. Congress imposed the coordinated spending limits in 1974, on the theory that such expenditures functioned as contributions and could be capped accordingly. The Court has long held, however, that political speech sits at the core of the First Amendment’s protections; even contribution limits are subject to exacting judicial scrutiny. Coordinated expenditures, on this view, are the party’s own expressive activity — a candidate’s own political vehicle, not a corrupting intermediary. The anti-corruption interest that justifies some restriction on large donors does not, the argument concludes, justify a ceiling on what a party can say in support of the candidate it was organized to elect. The limits burden speech without serving the only interest the Court’s precedents recognize as weighty enough to permit the burden.
The opinion’s central historical claim — that coordinated party spending was constitutionally protected “for nearly 200 years” after ratification — is the move that cracks the steel-man open. The tradition Kavanaugh invokes was composed in a constitutional order in which political parties were mass-membership institutions funded by small dues, volunteer labor, and patronage networks of modest scale — not the corporate-funded elite-coordination vehicles that parties became in the twentieth century. The Framers’ generation did not face, and could not have anticipated, the structural problem Congress in 1974 was responding to: industrial-scale campaign finance, the modern corporate form capable of bankrolling a party, and the documented post-Watergate corruption that produced the statute. The cherry-picked tradition is a pre-industrial artifact imported into a contemporary record it does not describe, and the institutional form it memorializes — the mass party — is precisely the institution the post-Watergate reforms were written to defend against capture by a small donor class. The pattern matches the history-and-tradition maneuver the Court has deployed across the post-Bruen docket: cite the tradition that supports the holding; omit the conditions that produced the opposing one.
The corruption analysis is where the audit lands hardest. The majority accepts that preventing quid pro quo corruption or its appearance can justify campaign-finance restrictions. It then treats anything beyond that narrow interest as constitutionally out of bounds. The surviving definition — quid pro quo — is the narrowest the Court will recognize, and the coordinated-spending limits did not advance that interest because, as Kavanaugh writes, “prophylaxis upon prophylaxis upon prophylaxis already serve to prevent quid pro quo corruption or its appearance.” That stack includes contribution limits to candidates, disclosure requirements, and the earmarking rule — the restriction on donations to parties designated for particular candidates. The dissent’s point, which the majority does not answer, is that the stack’s components were calibrated to a regime where coordinated party spending also capped the channel; remove the coordinated-spending cap, and the surviving components are designed for a regime that no longer exists. Justice Elena Kagan’s dissent, joined by Justices Sotomayor and Jackson, identifies the consequence: “a legal regime increasingly unable to stop political corruption, and thus to preserve our institutions’ democratic legitimacy.” The majority responds that restrictions piled on restrictions are not narrowly tailored. The exchange is the regime’s signature: every additional restriction Congress writes is met with a doctrinal expansion of the speech right that swallows it.
The doctrinal move’s operation in this opinion is precise. The Court’s reliance on the earmarking restrictions assumes a functional boundary between a party committee’s treasury and a nominee’s campaign that no longer exists. When a party committee can spend unlimited funds in direct, legal coordination with its candidate, the party is not exercising independent associative speech; it is functioning as an unlimited financial conduit for the candidate. The earmarking prohibition is trivially evaded when the expenditure itself is the coordination. By striking the coordination limits, the majority removed the structural barrier that prevented donors from pooling unlimited contributions through the party apparatus to subsidize a candidate’s campaign, bypassing the base contribution limits the Court claims to leave intact.
The pattern across the post-Buckley line is the regime, and the case at hand is its latest instance. In Citizens United, 558 U.S. 310 (2010), the Court held that independent expenditures do not give rise to corruption. In McCutcheon v. FEC, 572 U.S. 464 (2014), it struck down aggregate contribution limits by claiming the base limits were sufficient safeguard. Now, in NRSC v. FEC, it strikes the coordination limits by claiming the base limits and earmarking rules are sufficient safeguard. The doctrine functions as a one-way ratchet: each time the legislature enacts a new structural barrier to wealth-concentration in politics, the Court declares the previously enacted barriers sufficient and strikes the new one.
The Wall Street Journal’s editorial page argues that the limits on coordinated party spending weakened parties and strengthened the donor class that bypasses them, and that the ruling restores something closer to the historical balance. The premise is contestable, and the legal mechanics matter. Donors do not currently route money around parties through “coordinated giving to … Super PACs.” Under FEC rules, a Super PAC that coordinates with a candidate has its spending reclassified as an in-kind contribution subject to the contribution limits. What donors do — and what Citizens United permitted — is route unlimited money through independent expenditures to Super PACs, where the spending is shielded from contribution caps only because it is, by legal definition, not coordinated with the candidate. The donor class the Journal describes is not the mass of small donors the post-Watergate reforms imagined as the proper counterweight to large-give politics; it is the class whose independent Super PAC spending already operates outside the contribution limits the Court has left intact. NRSC does not change that arrangement. It adds a parallel channel: parties can now spend without coordination limits, in direct alignment with the candidates they exist to elect. The First Amendment the majority invokes is, in this architecture, the donor’s best legal weapon. The Citizens United independent-expenditure right and the new NRSC coordinated-spending right sit on the same side of the doctrinal line — the side that lets large donors speak at full volume into the political system, the only side Congress is still permitted to write meaningful law against.
The post-Watergate architecture — the Federal Election Campaign Act, the Bipartisan Campaign Reform Act, the coordinated-spending limits, the disclosure regime, the contribution caps — was the legislative answer to a documented corruption problem. The Court has spent two decades treating that answer as itself the constitutional problem. By freeing parties to coordinate unlimited spending with their candidates, the ruling effectively converts parties into the explicit, legal mechanism for the very large-money influence the post-Watergate regime tried to keep at arm’s length from the candidate — the laundering apparatus the architecture was designed to forbid. The First Amendment is being deployed here not to protect dissenting speakers from state suppression, but to dismantle the structural mechanisms designed to prevent the capture of the political process by concentrated capital. The work continues.