Court rulings related to the campaign industry have the power to reshape strategy and tactics for cycles to come – think Citizens United or McCutcheon. But for non-attorneys, these rulings can sometimes come as a surprise.
With a new cycle already upon us, political professionals should keep an eye on these three cases:
1. Potential Changes Around Coordinated Speech
The biggest case in 2025 is likely to be NRSC v FEC, challenging the limits on coordinated speech/spending between political parties and their candidates (in part overturning Colorado II). The NRSC is seeking Certiorari, with the government’s opposition due in February. Notable Amici in support of granting Certiorari include Mitch McConnell, 14 states led by Dave Yost of Ohio, and the Georgia Republican Party (which I filed).
McCain-Feingold (also known as the bipartisan Campaign Reform Act or BCRA) hamstrung parties terribly in 2002 in a lot of ways — many of which have been struck down as unconstitutional infringements on political speech.
Now, free speech advocates hope the limits on coordinating speech between political parties and their candidates will be next. It’s absurd that parties, which exist to elect candidates, can only coordinate speech with those candidates “so much.” In my view, there’s no anti-corruption interest served by this, no quid pro quo to avoid. It’s just “regulators be regulatin’.”
If the case is taken up by the Supreme Court, it’ll likely be the biggest campaign finance case this term, with major changes to the political world. Most notably, the end of separated IE operations at national party committees and more centralized messaging coordination at the national and state level.
2. IE Related Activities
Another big one is for 501(c)(4)s: Memorial Hermann Accountable Care v. Comm’r (the IRS), which comes out of the 5th Circuit, where the court gave a stunningly narrow opinion on what 501(c)(3)s can do. Appeals are forthcoming, and the concern is that the cramped decision could significantly impact 501(c)(4)s as well, which would alter the ability of those groups (and the vendors that serve them) to engage in IEs and election-related activity.
3. The Robocall Case
A sleepier case, and emerging legal trend, on the vendor side has been League of Women Voters et. al. v Kramer in the U.S. District Court in New Hampshire.
You’ll probably have heard of this one – telephone vendor Sam Kramer made robocalls into New Hampshire during the 2024 Democratic primary, using an AI version of President Biden’s voice telling people to save their vote. The state and Biden administration went after him – and various involved sub vendors – hard, and so did the League of Women Voters (LWV) and aligned groups.
Part of the onslaught is justified, but the hot issue buried in there was that the LWV argued there was a private right of action in the Voting Rights Act that extended to non-threatening statements. That’s nonsense, but the Department of Justice filed a statement of interest in support of that outlandish position.
On behalf of the Coolidge Reagan Foundation, I filed an Amici opposing this wild re-interpretation of the law, and the case has largely stalled since. But the same argument has been made in Alabama (where we filed an Amici as well), and in a recent case in Michigan Ct. of Appeals, headed to Michigan Supreme Court and potentially making its way to the Supreme Court eventually.
At issue is whether private actors, not the government, can sue for any alleged “misinformation” they decide is a threat and in doing so not just go after those whose message it is, but every vendor, sub-vendor, and infrastructure layer vendor in between.
It has huge implications for the political industry and vendors, and could unleash a flood of politically motivated litigation, the costs of which could keep many vendors out of the space. It’s lawfare meets cancel culture, and it will cut both ways.
Dan Backer is a member of Chalmers, Adams, Backer & Kaufman, LLC where he serves as counsel to campaigns & candidates, PACs, and political organizations.