Soft Money Ban Should be Scrapped, Skeptical Judges Urged

By Kenneth P. Doyle

June 24 — The last major element of the McCain-Feingold campaign finance law should be swept away by scrapping restrictions on unlimited “soft money” contributions to political parties, a lawyer for Louisiana’s Republican Party urged a skeptical three-judge federal appellate court panel ( Republican Party of La. v. Federal Election Commission, D.D.C., No. 15-cv-1241, hearing, 6/24/16 ).

Attorney James Bopp, who has led court challenges of dozens of campaign finance laws over more than two decades, argued against the soft-money restrictions during a hearing at the U.S. District Court for the District of Columbia. He cited recent Supreme Court cases, including the 2010 ruling in Citizens United v. Federal Election Commission and the 2014 ruling in McCutcheon v. Federal Election Commission, which held that contributions can't be limited if they don't corrupt a candidate.

The logic of these cases should apply to parties and not just outside spending groups, Bopp argued.

U.S. Circuit Judge Sri Srinivasan, who presided over the panel, challenged Bopp. He noted that the Citizens United and McCutcheon cases stopped short of overturning previous Supreme Court rulings that upheld the soft money provisions of the McCain-Feingold law, formally known as the Bipartisan Campaign Reform Act (BCRA).

‘Something We're Not Supposed to Do.'

While the logic of the high court's recent majority opinions might indicate soft-money ban is on shaky ground, Srinivasan said, a lower court must be reluctant to overturn a provision specifically left in place by the Supreme Court. Such a move “just sounds like something we're not supposed to do,” he said.

The Citizens United decision struck down on First Amendment grounds BCRA restrictions on campaign money from corporations and other outside groups, while the McCutcheon decision struck down limits on aggregate campaign contributions from an individual to candidates and party committees. Bopp said that, while Citizens United struck down restrictions on independent groups, McCutcheon “does that work for all of campaign finance.”

Arguing to uphold the soft-money restrictions was FEC attorney Charles Kitcher. He emphasized Supreme Court decisions that have upheld BCRA's soft money provisions going back to the 2003 ruling in McConnell v. FEC, which turned back a facial challenge to the law. The high court in McConnell cited an extensive record of apparent corruption of legislative process due to the influence of large soft money contributions to national party committees. Such concerns have continued, Kitcher said, citing the recent indictment of Sen. Robert Menendez (D-N.J.) in part for allegedly trading official favors for a contribution to New Jersey's state Democratic Party.

Procedural Issue Could Sidetrack Case

The attorneys argued about the Supreme Court precedents during a 90-minute hearing before Srinivasan and U.S. District Judges Tanya Chutkan and Christopher Cooper. About half of the argument time was spent addressing a procedural issue: whether plaintiffs represented by Bopp, including Louisiana's state Republican Party committee and two local Republican committees, have legal standing to challenge BCRA's soft money provisions.

The FEC, which is defending the current rules on soft money, says the plaintiffs don't have standing because they can't show that they have any donors ready to give large amounts of money that would be restricted by BCRA (See previous story, 05/10/16).

The procedural argument is important because it could determine whether the case is put on a fast track for an appeal to the Supreme Court. If the case is dismissed on procedural grounds, it could be sidetracked. If the three-judge court makes a decision on the merits, however, that could put the case on its way to the high court, setting a potentially major campaign finance ruling sometime in the coming months.

Supreme Court Changed

In a prior ruling that determined the soft-money challenge should be heard by a three-judge court, Cooper said the Louisiana Republicans' challenge to the $10,000 FEC limit on contributions to state and local party committees for federal election activity would effectively eviscerate soft-money limits. That's because it would let party committees raise money for “independent” federal campaign activities without regard to the FEC rules, he ruled.

Although the Supreme Court rejected previous challenges to party soft-money limits, Cooper said, the 2014 McCutcheon ruling makes the current challenge different. Cooper said that decision appeared to contradict the previous high court rulings upholding contribution restrictions.

If the latest challenge does get to the Supreme Court, it could be affected by recent changes on the court. The majority rulings in the McCutcheon and Citizen United cases included Justice Antonin Scalia, who died in February and whose seat on the Supreme Court remains vacant. Whether the Supreme Court would strike down campaign finance restrictions in a future case without Scalia's vote remains a question.

To contact the reporter on this story: Kenneth P. Doyle in Washington at

To contact the editor responsible for this story: Heather Rothman at

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