Trump Backs Soft-Money Limits in Supreme Court Case

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By Kenneth P. Doyle

The Trump administration has urged the Supreme Court to uphold long-standing 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, motion to dismiss or affirm filed 4/12/17).

A motion filed with the high court April 12 by acting U.S. Solicitor General Jeffrey B. Wall said the court should dismiss a challenge to soft money restrictions brought by the Republican Party of Louisiana. Wall, who was appointed by President Donald Trump last month as acting solicitor general in the Justice Department, filed the motion on behalf of the Federal Election Commission.

The DOJ’s Office of the Solicitor General represents federal government agencies before the Supreme Court. Trump has nominated veteran attorney Noel Francisco to be solicitor general, with Wall occupying the post until Francisco is confirmed by the Senate.

The Louisiana Republicans’ challenge to soft-money restrictions established by the Bipartisan Campaign Reform Act—also known as the McCain-Feingold law—was viewed as a test of whether the new administration would support campaign finance regulations. The case could also provide a test on the issue for the newly reconstituted Supreme Court with the addition of Justice Noel Gorsuch.

Previously, the Supreme Court upheld restrictions on unlimited contributions to political parties in rulings dating back to the 2003 decision in McConnell v. FEC.

The latest challenge is led by attorney James Bopp, who has spearheaded numerous challenges to campaign finance laws. On behalf of the Louisiana Republicans, Bopp has argued that more recent Supreme Court rulings allowing unlimited contributions for campaign spending by non-party groups undermine BCRA’s restrictions on soft money contributions to state and local party committees.

‘Governed by Precedent’

The goverment’s new, 25-page motion rejected that contention. In it, Wall pointed out that the high court’s more recent campaign finance rulings in Citizens United v. FEC and McCutcheon v. FEC explicitly upheld the McConnell case regarding soft-money restrictions on political parties.

“This case is governed by precedent that this Court has declined to overrule,” Wall’s motion said of the Louisiana Republicans’ challenge.

Depending on how the Supreme Court handles it, the soft money challenge could be the first major campaign finance case reviewed by the justices since their 2014 ruling in McCutcheon. 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 that the rules violated First Amendment free speech protections.

In 2015, the Supreme Court handed down a ruling in Williams-Yulee v. Florida Bar that 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 majority opinion by Chief Justice John Roberts, speaking for a 5-4 majority backing restrictions on soliciting judicial campaign money, emphasized differences between judicial elections and other types of elections.

Scalia’s Death Left Court Evenly Divided

The high court recently declined to wade into another campaign finance case challenging FEC disclosure rules for political ads known as “electioneering communications,” Independence Institute v. FEC. A petition for review also is pending in a challenge to Alabama’s state campaign finance rules that restrict the transfer of funds between state-regulated political committees.

After the death last year of Justice Antonin Scalia, the high court was evenly divided between four justices who have voted consistently to roll back campaign finance rules and four justices who generally have supported those rules. The court declined to review any new campaign finance cases before Scalia’s seat on the court was filled.

Gorsuch, Trump’s pick to fill the Supreme Court vacancy left by Scalia’s death, has been widely viewed as likely to follow the same path as Scalia on this issue—toward less regulation of money in politics, due to First Amendment concerns. However, Gorsuch has authored few rulings of his own on campaign finance issues in his previous role as a judge on the U.S. Court of Appeals for the 10th Circuit.

Lower Court Rejected Soft-Money Challenge

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 the Republican Party of Louisiana and two local party committees.

The McCain-Feingold law requires state and local party committees generally 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 dollar limits, with no corporate or union money allowed.

The Louisiana Republicans’ case thus could give the Supreme Court an opportunity to scrap or uphold restrictions on political party funding that have been in place for nearly 15 years. The rules are among the 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, beginning with the pivotal ruling in the McConnell case, have held that restrictions on party funding are justified due to the close relationship between candidates and political parties. The rulings cited extensive evidence provided in McConnell that unlimited contributions to a party committee have the potential to corrupt the federal candidates supported by the party.

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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