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After ‘McCutcheon,' Soft Money Next on Chopping Block?

Tuesday, April 22, 2014

By Kimberly Robinson  

April 4 -- The deep-seated divide between the U.S. Supreme Court's liberal and conservative wings on campaign finance played out once again in McCutcheon v. Federal Election Commission,2014 BL 89958, U.S., No. 12-536, 4/2/14.

In its fourth 5-4 decision on campaign finance, the Roberts Court invalidated yet another part of the Bipartisan Campaign Reform Act of 2002, this time taking down aggregate contribution limits that cap the total amount that an individual may donate during an election cycle (see related story, page 115).

But the sweep of the high court's decision is hotly debated--both by court watchers and the justices themselves.

In his dissenting opinion, Justice Stephen G. Breyer said that taken with Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the “decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

Dismissing Breyer's criticism as mere “rhetoric,” Chief Justice John G. Roberts Jr.'s plurality opinion insisted that the decision was quite limited.

In particular, Roberts said that it “clearly does not overrule” the court's determination in McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), that the BCRA's restrictions on “soft money” are constitutional.

Soft Money Next?

James Bopp Jr. of The Bopp Law Firm, Terre Haute, Ind., who represented the Republican National Committee in the case, agreed, telling Bloomberg BNA April 4 that Roberts's opinion was “narrow and careful.”

Although the Court certainly expressed important doctrinal positions that will impact future cases, it is an overstatement to say that all but undoes soft money restrictions, Bopp said.

However, Daniel Tokaji, a professor at Ohio State University law school and senior fellow at Election Law @ Moritz, said that although it is “technically true” that McCutcheon didn't invalidate restrictions on soft money, the decision “makes it more likely that the soft money ban will be struck down in a future case.”

The “handwriting is on the wall,” he told Bloomberg BNA April 3.

 

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Pamela Atkins at patkins@bna.com

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