Author: Sean Collins Walsh

The U.S. Supreme Court this summer overturned limits on how much money political parties can spend in coordination with their chosen candidates — the latest in a series of decisions by the conservative majority that have unleashed a flood of money into national politics.

How that will play out in Philadelphia remains to be seen. But local elections lawyers said last week it could boost the power of the city’s political parties to influence the outcome of elections.

“It will be disruptive to city elections,” Adam Bonin, a Philadelphia-based Democratic elections attorney, said of the case, National Republican Senatorial Committee v. Federal Election Commission. “It will give parties more power, and it will give incumbents more power.”

The Philadelphia Board of Ethics, which enforces the city’s campaign finance rules, plans to consider the potential impacts of the Supreme Court’s 6-3 ruling this fall, said board chair Ellen Mattleman Kaplan. That would ensure any changes would take effect before next year’s municipal elections, when Mayor Cherelle L. Parker and all 17 Council members are up for reelection.

In deep-blue Philadelphia, where most local elections are effectively decided by Democratic primaries, two key questions will determine the case’s impact: Does the ruling apply to local elections, and does it apply to primaries?

Both are legally thorny issues that could require lengthy court battles to sort out. But if the answer to both questions ends up being yes, the NRSC ruling has the potential to give significant advantages to candidates who are endorsed by the Democratic City Committee.

For instance, in crowded Democratic primaries for mayor or City Council, the party-endorsed candidates would be the only ones who could effectively circumvent the city’s limits on the size of political donations — currently $3,700 per year for individual donors — by directing deep-pocketed supporters to give additional money to the party, which is not subject to those limits.

The party could then work directly with its endorsed candidates on how to spend that money, including decisions on the messaging and timing of TV ads or door-knocking efforts.

To be clear, experts said, there are many uncertainties about how, and even if, the ruling would apply to Philadelphia municipal elections, where political money is more tightly regulated than in state and federal races. In the immediate future, the ethics board could take the position that the ruling applies only to federal races, not the city races it regulates.

“We haven’t come to any conclusions yet,” said J. Shane Creamer Jr., the ethics board’s executive director. “We’ve got to keep in mind that the federal law in that case is a little different than Philadelphia’s laws, including different rules designed to prevent circumvention of contribution limits.”

Additionally, the Supreme Court opinion did not specify whether its ruling applies to local elections, a question that could be addressed by subsequent federal court cases. The NRSC case before the justices centered on limits on coordination between parties and candidates in federal law that apply only to general elections.

But Philadelphia elections lawyer Kevin Greenberg said the underlying philosophy in the decision — that limiting political parties’ coordination with their candidates constituted a violation of the constitutional right to free speech — would likely extend to primary elections.

“There is nothing about the Supreme Court’s logic that inherently applies only to general elections,” said Greenberg, who has done legal work for the Pennsylvania Democratic Party. “What any judge and any lawyer thinking about how to implement this … would and should do is apply the Supreme Court’s opinion to what the next set of facts are, and under the Philadelphia law, this will be problematic for the existing [campaign finance] statue.”

The ruling directly applies to general elections for U.S. House and Senate races, meaning that federal party committees can now coordinate with — and spend freely on behalf of — candidates running for Philly congressional seats and Pennsylvania’s U.S. Senate seats.

But the two outstanding questions, about local elections and primaries, would likely have to be sorted out in court because the city is unlikely to voluntarily change its system, said Matthew Haverstick, a Philadelphia elections lawyer who often works with Republican clients. Such a case would require a candidate or, more likely, a political party suing the city, he said.

“Given the way the Philly ethics board and the city regulates elections, they’re not going to do anything unless they’re told to do it by a court,” Haverstick said. “Whether this decision has a direct impact on the Philadelphia rule is unclear. … You could argue that political parties can coordinate in primaries — there are good arguments that it could — but it would have to be considered in court.”

Haverstick is representing 2023 mayoral candidate Jeff Brown in a lawsuit against the ethics board. During that campaign, the ethics board alleged that a super PAC backing Brown coordinated with him in violation of campaign finance rules. A judge later threw out the case.

With Haverstick as their attorney, Brown and the PAC have since sued the ethics board, alleging in part that it unfairly targeted him during the campaign. The Commonwealth Court in March ruled against Brown and the PAC. They have appealed the decision to the Pennsylvania Supreme Court, where it is pending.

A potential opportunity for Philly’s Democratic establishment

The local Democratic establishment’s influence in recent years has been waning as insurgent candidates backed by progressive groups have notched key victories, oftentimes with the backing of deep-pocketed outside spending groups supported by organized labor.

Depending on how it is applied, the court’s decision could create an opportunity for the Democratic City Committee to reassert itself by giving its preferred candidates, who are typically more centrist or conservative Democrats, access to a major financial advantage over their rivals.

The Democratic City Committee did not respond to a request for comment.

Currently, candidates for city offices are subject to strict limits on the size of donations they can collect: $3,700 per year for individual donors, and $14,800 for organizations. Outside groups known as super PACs can raise money in unlimited amounts — but they are prohibited from coordinating with campaigns over fundraising, strategy, and spending.

If applied to city elections, the ruling could create an exception to those rules for one type of outside group — political parties — allowing them to raise money in unlimited amounts and spend as much as they want while working hand in glove with their endorsed candidates. And in a primary election, where there is only one party involved, that could give the establishment-backed candidate a major advantage.

But there is reason to doubt that scenario will become the norm in high-profile Philadelphia elections. In addition to legal questions about the NRSC case’s applicability, there are political obstacles that could prevent candidates from taking advantage of the court’s ruling.

To be endorsed by the city committee, candidates must receive the support of a majority of the 69 Democratic ward leaders, who often fail to reach that level of consensus in crowded races. And even if a candidate wins the endorsement, there is no guarantee they would have the donor network to be able to take full advantage of coordinating fundraising with the party.

Lastly, the party may differ with a candidate’s campaign on strategy decisions, or it could decline to raise money beyond the limits applicable to other candidates to avoid the appearance of tipping the scales.

Bonin said he opposes the current Supreme Court’s campaign finance rulings, such as the 2010 Citizens United decision that helped usher in the dominance of super PACs. But in light of those rulings, he said, the NRSC decision may be a positive development.

“If we’re going to live in a world where super PACs exist, we are better off strengthening political parties, which are more accountable,” he said.

A new twist in Council election races for the GOP and Working Families Party?

There is another arena in which the decision could have a major impact in Philadelphia: the general election races for the two seats on City Council that are reserved for independent or minority-party candidates.

Republicans held those seats for about 70 years until Councilmembers Kendra Brooks and Nicolas O’Rourke of the progressive Working Families Party won them in the two most recent city election cycles, a major factor in Council’s recent shift to the left.

The Philly GOP has seen anemic fundraising levels and dismal results in recent years. If applied to local primaries, the NRSC ruling could potentially help the party gain traction with the help of just a handful of major donors — especially given that it is less clear the Working Families Party, without a primary election, would be able to take advantage of the change.

If the NRSC ruling is applied to city elections, the Philly GOP would undoubtedly be able to coordinate with its nominees in those Council races. Vince Fenerty, who chairs the Republican City Committee, said he is seeking legal advice on that question.

“We’re hopeful that there could be a chance for us to help our City Council candidates next year and everyone else who runs [as a Republican],” he said.

It is unclear whether the ruling would benefit the smaller Working Families Party, which under Pennsylvania law is not a major political party. (Pennsylvania’s Commonwealth Court is currently deciding an unrelated case on the Green Party that could affect the legal standing of groups like the Working Families Party.)

In a statement, Working Families Party spokesperson Nick Gavio lamented the direction of the U.S. Supreme Court’s recent rulings on campaign finance law.

“Anyone who has knocked a door in Philadelphia knows that regular voters are not pushing to give billionaires and the ultra-rich more power to influence our elections,” he said. “WFP has no interest in overturning existing campaign finance regulations that act as guardrails against political and corporate insiders buying elections. We will of course continue to follow all campaign finance rules that are on the books.”

A new quandary for the ethics board

In stark contract to the increasingly unregulated world of federal elections, Philadelphia has some of the tightest campaign finance restrictions in the country, and the ethics board has aggressively enforced the city’s rules.

Critics, including Greenberg, believe the board has already overextended itself by sticking to Philly’s rules as the Supreme Court increasingly takes a wrecking ball to federal campaign finance law. And for Greenberg, the NRSC case is the latest decision that shows Philly is overdue for a full redo that “addresses these issues in light of the [Supreme Court’s] clear direction.”

“City Council needs to write appropriate rules, and the board of ethics needs to rescind almost all of its existing regulations and readopt them in law,” he said.

It is unlikely the ethics board would lead the charge in demolishing the campaign finance system it helped to create — one that has been widely credited with limiting the influence of corporate interests and super-wealthy individuals since it was implemented in 2005.

In an interview, Creamer, the ethics board executive director, referenced differences between the federal law in question in the NRSC case and Philly’s system — an indication the board could determine the decision has no bearing on local elections.

“We don’t have a similar structure to our law. So it may impact our law somehow; it may not,” Creamer said. “We’re still analyzing it.”

There are several important differences the board could point to. In federal law, for instance, there are limits on how much individuals can give to political parties, but in Philadelphia there are none.

In addition, the majority opinion in the NRSC decision, which was authored by Justice Brett M. Kavanaugh, discusses at length how rules around “earmarked” donations — in which donors give money to political parties and direct them to spend it on specific candidates — provide a “prophylaxis” against corruption that could result from eliminating limits on coordination with political parties. Philly does not have an earmarking process.

If the ethics board stands pat, candidates or political parties seeking to take advantage of the NRSC ruling could challenge the board’s regulations in court. Politicians in heavily Democratic cities like Philadelphia, however, face strong disincentives from taking that step, which would allow them to be painted as supportive of moneyed interests playing a greater role in local politics.

Bonin, who has been less critical of the ethics board’s approach to campaign finance than Greenberg, said resistance to the NRSC case would be difficult.

“Whether they like it or not, they have to allow it,” Bonin said, referring to coordination between candidates and parties.