Next Chance To Gut Campaign Finance Law Heads For Supreme Court

The ban on "soft money" donations to state parties is on the line.
Chief Justice John Roberts' court has been a harsh place for campaign finance rules.
Chief Justice John Roberts' court has been a harsh place for campaign finance rules.
Bloomberg via Getty Images

WASHINGTON -- The next domino in the effort to erase campaign finance restrictions has just been pushed. A case attacking the McCain-Feingold reform law's ban on unlimited contributions to political parties has been set on a path that almost certainly ends at the Supreme Court.

With the help of Citizens United lawyer Jim Bopp, the Republican Party of Louisiana and the Jefferson Parish and Orleans Parish Republican Party sued to allow state and local parties to raise enormous sums under looser state laws and then spend them on federal elections. That practice is currently banned by restrictions on the use of "soft money" -- unlimited contributions to political parties that pay for so-called party-building activities, as opposed to supporting specific candidates.

The ban came after Senate investigations found that both parties had abused their soft money accounts to evade campaign contribution limits. Money meant for party-building activities was spent on ads promoting candidates. The Senate's investigations also found that soft money donors were provided increased access and influence in policy making.

To close that loophole, the 2002 McCain-Feingold law banned political parties from receiving and spending money in excess of the base contribution limits for spending on candidates. The law formally known as the Bipartisan Campaign Reform Act also banned the solicitation of soft money contributions by candidates. The Supreme Court upheld those restrictions in its 2003 decision in McConnell v. Federal Election Commission.

Then last year, in another campaign finance case, the court said something about corruption that undermined the whole justification for banning soft money.

Since 1976, the Supreme Court has held that the only permissible justification for limiting the raising or spending of campaign money is to reduce either actual corruption or the appearance of corruption. That makes the court's definition of "corruption" incredibly important in determining what limits pass muster.

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In McConnell, the court had included both the influence obtained by a donor and the gratitude felt by a recipient of donations as forms of corruption. But that was before Chief Justice John Roberts and Justice Samuel Alito were appointed to the court. Since those two justices arrived, the court has narrowed the definition of corruption until in the 2010 Citizens United v. FEC decision, it declared that spending by independent groups that was not coordinated with candidates or political parties could not lead to corruption, period. Why? Because, the court said, such spending did not risk quid pro quo corruption -- the trading of contributions for specific actions by officials.

Four years later, Roberts' 5-4 majority opinion in McCutcheon v. FEC expanded Citizens United's holding -- that corruption is found only in quid pro quo situations and does not include issues of influence, access or gratitude --- from matters of independent spending to the entirety of campaign finance law.

Justice Stephen Breyer, writing for the minority in that decision, noted that this narrower definition of corruption directly threatened the soft money ban. Breyer wrote that the new definition "is flatly inconsistent with the broader definition of corruption upon which McConnell's holding depends."

Now the case that will likely prove Breyer right has arrived. Republican Party of Louisiana v. FEC was approved for a fast-track process on Nov. 25. Legal challenges under BCRA can skip the usual single-judge trial and go straight to a special three-judge court with direct appeal to the Supreme Court. As University of California-Irvine election law professor Rick Hasen explained in The National Law Journal, the fast-tracking procedure makes it almost certain that the Supreme Court will take up the case.

Advocates for campaign finance deregulation have tried to bring cases similar to the Louisiana lawsuit through the fast-track process before. But lower courts decided that two such cases failed to meet the criteria to be accepted for a three-judge panel.

The U.S. District Court for the District of Columbia determined that the Louisiana case could go to the three-judge panel because it was carefully drawn to challenge only the soft money ban in BCRA and not the base contribution limits created in the Federal Election Campaign Act. The district court did, however, acknowledge that overturning the soft money ban would effectively eviscerate those base limits.

"Make no mistake, a ruling for Plaintiffs on the merits would render largely meaningless FECA's limits on contributions to state- and local-party committees," Judge Christopher Cooper wrote.

Without those federal limits, the ability of wealthy donors and powerful interests to fund presidential and congressional elections through state and local party committees would vastly increase. Thirteen states have no state-level limits on contributions to political parties while another 14 have limits only on corporate and union donations, according to the National Conference of State Legislatures. A victory would allow the parties in places like Louisiana, Virginia or Missouri to collect a $1 million check from a single donor under state contribution limits and then spend it on federal elections.

Following the McCutcheon decision last year, The Huffington Post predicted a challenge to the soft money ban on state and local parties would be the next deregulatory campaign finance case to reach the Supreme Court. Our timeline suggested it could happen in 2016. Looks like we were off by just a year or two.

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