Aug. 4 — Republican attorney James Bopp has renewed a challenge to restrictions on “soft money” contributions to political parties, the last remaining major campaign finance regulation established under the 2002 Bipartisan Campaign Reform Act (BCRA), known as the McCain-Feingold law.
A new lawsuit challenging the soft-money restrictions on behalf of the Republican Party of Louisiana and two local Republican committees was filed Aug. 3 by Bopp, of the Terre Haute, Ind.-based Bopp Law Firm. The case was filed in the U.S. District Court for the District of Columbia against the Federal Election Commission, which enforces campaign finance laws.
Bopp, a veteran attorney and longtime critic of campaign finance regulation, has spearheaded dozens of court challenges to federal and state rules nationwide on behalf of Republicans and conservative groups.
In the latest case, Bopp moved for an expedited decision by a special three-judge panel of the federal district court. BCRA provides for a decision by a three-judge court, which can be appealed directly to the Supreme Court. A similar motion was denied in Bopp's previous challenge to the soft-money restrictions by U.S. District Judge Christopher R. Cooper, who also will preside over the newly filed case.
The new filing noted that this case is related to the previous case challenging BCRA soft money restrictions, which was joined by the Republican National Committee (RNC) along with the Louisiana Republican Party. That case was voluntarily dismissed by the RNC late last year, without explanation, after it had been scheduled for consideration by the U.S. Court of Appeals for the District of Columbia Circuit.
Election law expert Richard Hasen, a law professor at the University of California, Irvine, said on his Election Law Blog that Bopp's latest BCRA challenge “has a real chance to succeed if the Supreme Court decides to weigh in.”
Hasen said that much would depend on whether a three-judge court is convened by the federal district court in Washington, where the case was filed.
“If so,” he said, “that means the case would come to the Supreme Court on a direct appeal and it is much more likely the Court will hear the case.”
BCRA bans soft-money contributions to national parties and restricts the use of soft money in federal elections by state and local parties. The soft-money limits are among the last BCRA provisions left intact following a series of court challenges to other campaign finance regulations over more than a decade.
While party limits have remained, other restrictions on independent, non-party campaign spending, including money from corporations and unions to influence elections, have been eroded by a series of court opinions in recent years. The leading case was the 2010 Supreme Court decision in Citizens United v. FEC.
The result has been skyrocketing contributions to, and political spending by, non-party groups such as super political action committees and nonprofit organizations, while traditional party committees have complained that they are increasingly hamstrung and ineffective.
The decision to renew the legal challenge to the BCRA soft-money limits on behalf of the Louisiana Republicans—but not the RNC—may reflect divisions within the party over how to proceed on campaign finance issues.
Asked why a new case was being filed now after the previous legal challenge was dropped, Bopp responded in an Aug. 4 e-mail to Bloomberg BNA: “You will have to ask the RNC why they wanted to dismiss their previous challenge.”
Last November, the RNC refused to provide an explanation when the previous case was abruptly dropped. However, the move came shortly after Republicans won electoral victories that gave them majority control of both the House and Senate and appeared to reflect a strategic shift away from such court challenges by at least some in the party.
Some observers suggested that Republican leaders decided after last November that they could compete and succeed in a campaign finance system dominated less by parties and more by unlimited contributions to super PACs and other organizations formally independent from the political parties. At the same time, Republicans also have continued to advocate for loosening campaign finance limits on the parties—if not through court challenges, then through legislative proposals.
A Republican proposal surfaced in Congress late last year to curb legal restrictions on coordinated spending between parties and candidates—a move that could increase the power of party committees and make them more attractive to contributors. Party committees are now allowed to coordinate spending with federal candidates—an advantage over outside groups that must remain formally independent—but the amount of party-coordinated spending is capped for each candidate.
The legislative proposal floated last year to ease the coordinated spending caps was not adopted, but Congress did approve a controversial measure—agreed to by some Democrats—greatly expanding contribution limits to national party committees. The measure—blasted by supporters of campaign regulation—was added as a last-minute amendment to a major appropriations bill.
Congressional Republicans have again renewed efforts this year to loosen limits on political parties, tacking on a provision to yet another appropriations bill that would allow party spending that is coordinated with a candidate's campaign, unless the party spending is “controlled by, or made at the direction of” the candidate. The measure was added to a Senate version of a bill (S. 1910) funding the Federal Election Commission and other agencies, which was approved by the Senate Appropriations Committee on a party-line vote last month and awaits a Senate floor vote.
The appropriations measure also would require Senate campaign finance reports to be filed electronically with the Federal Election Commission, a move that could make Senate reports available to the public much more quickly. Republican acceptance of this long-standing disclosure proposal—backed by some Democrats and supporters of greater campaign finance disclosure—frequently has been floated in the past as a possible legislative compromise for loosening campaign finance restrictions on political parties.
The fate of the appropriations measure—known formally as the Financial Services and General Government Appropriations Act for fiscal 2016—remains unclear. Congress is not expected to take final action on this or other appropriation measures until the fall. At that point, differences among the White House and congressional Democrats and Republicans over funding levels and other provisions will have to be worked out or the federal government could face the prospect of a funding lapse and possible shutdown at the end of the current fiscal year on Oct. 1.
In a statement announcing the filing of the latest court challenge to soft money limits, Bopp cited the Supreme Court ruling in Citizens United, as well as the court's 2014 decision in McCutcheon v. FEC. In both cases, the high court held that campaign regulation is permitted under the First Amendment only to prevent quid-pro-quo corruption of a candidate and cannot limit independent campaign spending or the overall amount that a contributor can give.
“In an era when super-PACs can solicit unlimited contributions and spend enormous amounts to influence political races, political parties are constitutionally entitled to compete equally with them with their own independent campaign activity,” Bopp said. “Political parties are an important part of our political system and success in this case will help empower them again.”
In the previous challenge, FEC attorneys fought to preserve soft-money limits, arguing that Republican claims that the soft-money ban is unconstitutional have been rejected repeatedly by the Supreme Court.
The issue was considered in a direct challenge to BCRA decided in a 2003 Supreme Court ruling, McConnell v. FEC, and later in an as-applied challenge brought by the RNC and rejected by the high court in 2010.
The FEC noted that federal campaign finance laws have prohibited political parties from using soft money for messages expressly advocating for or against federal candidates for nearly 40 years. Instead, parties and candidate committees must use only “hard money,” raised under contribution limits from individuals and traditional PACs, to influence federal elections.
The national political party committees also have set up entities to make independent campaign expenditures—avoiding limits on spending coordinated with candidates—but this spending must be funded with limited contributions.
The limit for traditional contributions to a national party committee is set by the FEC in at $33,400 per contributor in the 2016 election cycle, though the new law passed by Congress last year allows a contributor to give up to $801,600 per year to each party through the traditional accounts and newly created accounts for convention, party headquarters and election recounts. All national party contributions must come from individuals or traditional PACs.
In the 2014 congressional campaigns, the House and Senate campaign committees of each major party continued to lead other independent campaign spending organizations and spent a combined total of more than $230 million. But that could change in the 2016 cycle, which is shaping up, like no previous election in recent memory, to be dominated by unlimited contributions to super PACs and other outside spending organizations.
An analysis of the most recent FEC campaign finance data by the nonprofit Center for Responsive Politics found that $258 million was collected in the first half of this year just by the super PACs linked to the almost two dozen presidential candidates competing for the 2016 Democratic and Republican nominations. That is far more than the $217 million total collected so far this year by all the national party committees of each major party, according to an FEC report analyzed on the Political MoneyLine website operated by former FEC officials Kent Cooper and Tony Raymond.
The figures indicated that, even with the increased party contribution limits, the parties may struggle to keep up with outside groups in spending during next year's campaigns.
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