`Soft Money’ Case a Test for Trump, Supreme Court

By Kenneth P. Doyle

A filing due next month in a key Supreme Court case could provide the first indication of whether the Trump administration will seek to uphold or challenge longstanding campaign finance laws that restrict unlimited “soft money” contributions to political parties ( Republican Party of Louisiana v. Federal Election Commission, U.S., No. 16-865, jurisdictional statement filed 1/6/17).

The Supreme Court has set a deadline of March 13 for the Justice Department to file a response to a jurisdictional statement seeking review of a lower-court decision upholding current Federal Election Commission limits on party soft money. The response is expected to be filed on behalf of the FEC by the Office of U.S. Solicitor General, now headed by Acting Solicitor General Noel Francisco.

President Donald Trump hasn’t yet named a permanent Solicitor General, the top DOJ official in charge of representing the government before the Supreme Court. Whoever is nominated would have to be confirmed by the Senate, making it unlikely that the new solicitor general will be in place by the time the government’s response to the soft-money challenge is due.

Francisco, who’s currently holding the job came from the law firm Jones Day, where he represented former Virginia Gov. Robert McDonnell (R) before the Supreme Court in a major corruption case decided last year. The high court sided with McDonnell in that case and overturned his conviction related to accepting gifts from a Virginia businessman.

Last Big Case Was McCutcheon

The soft money challenge set to be eyed by the high court could be the first major campaign finance case reviewed by the justices since their 2014 ruling in McCutcheon v. FEC. In that case and several others over the last decade, the Supreme Court by a 5-4 vote rolled back restrictions on campaign financing, finding they violated First Amendment free speech protections.In 2015, the Supreme Court handed down a ruling in Williams-Yulee v. Florida Bar, which upheld a Florida rule barring candidates in state judicial elections from personally soliciting campaign contributions. The decision was a significant win for supporters of limits on judicial elections, but was viewed as having limited impact. The court opinion by Chief Justice John Roberts, who joined a 5-4 majority backing restrictions on soliciting judicial campaign money, emphasized differences between judicial elections and other types of elections.

The high court also has another pending campaign finance case challenging FEC disclosure rules for political ads known as “electioneering communications,” Independence Institute v. FEC. The justices are set to consider at their private conference Feb. 17 whether to accept the Independence Institute case for a full review and oral argument.

With the death last year of Justice Antonin Scalia, the court is now evenly divided between four justices who have voted consistently to roll back campaign finance rules and four justices who have generally supported current rules. Neil Gorsuch, President Trump’s nominee to fill the Supreme Court vacancy left by Scalia’s death, has been criticized by supporters of strong campaign finance rules, who say that, like Scalia, Gorsuch is expected to continue on the path toward less regulation of money in politics.

Louisiana Republicans Launched Case

The soft-money case now awaiting action by the Supreme Court seeks to overturn a lower court ruling last fall. A special, three-judge court in the U.S. District Court for the District of Columbia rejected a challenge to FEC rules limiting contributions to state and local party committees. The case was launched by the Republican Party of Louisiana and two local party committees in that state.

The McCain-Feingold law—formally known as the Bipartisan Campaign Reform Act, or BCRA—requires party committees to use FEC-regulated “hard money” for activities affecting federal elections. Hard money includes only contributions from individuals and traditional political action committees, subject to limits and with no corporate or union money allowed.

The new appeal could give the Supreme Court an opportunity to scrap or uphold the BCRA restrictions on political party funding that have been in place for nearly 15 years. These rules are among that last remaining provisions of the McCain-Feingold law, following court decisions that have rolled back funding restrictions for non-party groups that claim to be operating independently of candidates.

Previous court decisions have held that restrictions on party funding are justified due to the close relationship between candidates and political parties.

Groups File New Court Brief

The soft money case is being considered under streamlined procedures for constitutional challenges to campaign finance laws. That means the Supreme Court must issue some type of ruling on the merits, though there’s no guarantee of an oral argument or a written opinion.

Supporters of stronger campaign finance rules have weighed in with a friend of the court brief announced Feb. 13, which urged the Supreme Court to continue upholding restrictions on political party funding. In the filing, three nonprofit organizations supporting strong rules, Democracy 21, Public Citizen and the Campaign Legal Center, urged the Supreme Court to uphold the constitutionality of BCRA’s contribution limits to state and local parties used for federal electioneering purposes. Before BCRA’s enactment, state parties could use unlimited soft money contributions to pay for various activities benefiting federal candidates, the brief said. It said that allowed large donors, including corporations, to contribute to state parties in order to buy influence over federal officeholders.

The brief noted that the Supreme Court upheld BCRA’s ban on soft money as a legitimate anti-corruption measure in its 2003 decision in McConnell v. FEC and again in 2010 in Republican National Committee v. FEC. The brief also said the Supreme Court’s more recent rulings in the 2014 McCutcheon case and the 2010 decision in Citizens United v. FEC left the soft money rulings untouched.

Rise of Super PACs

James Bopp, Jr., the lead counsel for the Louisiana Republican Party, has spearheaded numerous challenges to campaign finance rules. Bopp has said that the challenge to soft money restrictions is about equalizing the fundraising power of parties and nonparty groups, including super political action committees. Super PACs can collect unlimited contributions, including corporate and union money, and have risen to prominence since passage of the McCain-Feingold law and the subsequent court decisions rolling back limits on independent political spending.

“While super PACs may receive unrestricted funds to do independent activities, political parties are severely limited in their participation by funding restrictions,” Bopp said in a statement announcing the Supreme Court appeal last month. “Fairness and the First Amendment require that political parties be liberated from the ‘soft money’ restrictions on their independent activities so they can effectively participate in our political system by resuming their traditional voter-mobilization activities,” he said.

Bopp has argued that the Supreme Court’s previous rulings upholding BCRA’s soft money restrictions have been undermined by more recent Supreme Court cases, including Citizens United and McCutcheon. The decisions left in place limit the direct campaign contributions to candidates and political parties, but Bopp has contended that the logic of these recent cases argues for rolling back funding restrictions on parties, as well.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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