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“Soft money” donation ban upheld

NOTE: This post discusses the second of two major rulings Friday in lower courts in Washington on campaign finance law, in the wake of the Supreme Court’s January decision in Citizens United v. FEC.  The other ruling is explored in a separate post (see below).


In a major new ruling on money in politics, almost certainly headed for the Supreme Court, a three-judge U.S. District Court in Washington on Friday rejected a Republican Party challenge to the federal law that limits so-called “soft money” donations to political parties.  (“Soft money,” now banned, involved contributions outside the donation ceilings imposed on campaign finance activity.)  The District Court ruled that the GOP challenge was not aided by the Supreme Court’s Jan. 21 ruling in Citizens United v. Federal Election Commission, expanding constitutional protection for some forms of campaign spending by non-party groups.

The three-judge panel concluded that only the Supreme Court could relax the present partial ban on “soft money” given to parties, since the Justices had upheld that seven years ago.   The Supreme Court, in McConnell v. FEC, upheld those provisions against a “facial” challenge — that is, a challenge based on the provisions of the law as written, rather than on their actual use in a specific instance.  The GOP challenge rejected Friday tested those limits as applied to the national GOP committee, its chairman, and two state or local GOP committees.

At issue in the case of Republican National Committee, et al., v. FEC (District Court docket 08-1953) was a provision in a 2002 federal campaign finance law that barred political parties from raising or spending donations of more than $30,400 from any individual donor, no matter how the party planned to spend it during a campaign for the presidency or for Congress.  The ban also limited state and local party committees from using donations of more than $10,000 from any one donor during a year to pay for federal campaign activity.

Under federal campaign finance law, such a ruling by a three-judge District Court can be appealed directly to the Supreme Court, bypassing a federal Circuit Court of Appeals.  An internal GOP document, disclosed recently by, indicated that party leaders expected the ruling to be issued soon, and that they planned to seek “expedited review” in the Supreme Court.  California professor Rick Hasen, an election law expert, has indicated that a lawyer has already been chosen to pursue that appeal — Washington attorney Theodore B. Olson. (Olson argued and won the Citizens United decision in the Supreme Court.)

In the new challenge to the “soft money” restriction, the national GOP contended that the partial ban could only survive constitutional challenge if it were limited directly to spending made on the campaign of a specific federal candidate — that is, a candidate for the White House or Congress.  The party said that it wanted to raise and spend unlimited amounts of money to support only state candidates, or state parties’ redistricting of legislative seats after the 2010 Census, or spending to educate voters on issues, costs of court litigation not involving federal elections, GOP headquarters expenses.  None of those activities, the GOP contended, had a sufficient link to a federal election, so Congress lacked the authority to curb money-raising for such activity.

The California state GOP and the San Diego County GOP said they wanted to gather unlimited amounts of money to spend on information about California ballot measures, and on voter registration and get-out-the-vote efforts.   National GOP chairman Michael Steele said he wanted to raise money for the national, state and local GOP efforts.

The District Court concluded, however, that the Supreme Court’s McConnell decision in 2003 rejected similar goals in upholding the partial ban on “soft money” as written.  “This was the whole point of [the] soft-money ban and of the McConnell decision upholding it,” the opinion said.  The argument, it added, “is another way of asking us to overrule McConnell‘s holding with respect to the ban on soft-money contributions to national political parties.  As a lower court, we of course have no authority to do so.”

While the Supreme Court has allowed new challenges to the ban, based on its application to specific factual situations, the Supreme Court upheld it facially in a situation involving the same kind of campaign activities that the GOP now plans, the District Court said.  A challenger “cannot successfully bring an as-applied challenge to a statutory provision based on the same factual and legal arguments the Supreme Court expressly considered when rejecting a facial challenge to that provision,” it explained.  “Doing so is not so much an as-applied challenge as it is an argument for overruling a precedent.”

The three-judge District Court said in its opinion that it had held off deciding the GOP challenge until after the Supreme Court had ruled in the Citizens United case.  The two sides in the case then filed new briefs.  Turning to the Citizens United decision, the District Court agreed with the GOP that the Supreme Court has now ruled out limits on campaign finance based on the theory that large campaign donations, by themselves, justify federal campaign finance restrictions.  But, it went on, the Supreme Court decision in McConnell rested on “something more specific: record evidence of the selling of preferential access to federal officeholders and candidates in exchange for soft-money contributions.”

Moreover, the opinion added, the Supreme Court also had relied on the close relationship between federal officeholders and the national parties.  So, even if the GOP is now prepared to keep federal officeholders out of its state and local activity, as party leaders have pledged, that is not sufficient to take it out of the reach of the McConnell precedent, the District Court concluded. Still, the Court remarked, “in due course, the Supreme Court will have the opportunity to clarify or refine this aspect of McConnell as the Court sees fit,” and to take account of the GOP’s new pledge to “no longer grant preferential access to soft-money contributors.”

The District Court also rejected arguments by GOP chairman Steele and by the state and local GOP units, saying those, too, were foreclosed by the Supreme Court’s 2003 ruling.

The opinion was written by Circuit Judge Brett M. Kavanaugh and was joined by U.S. District Judges Rosemary M. Collyer and Richard J. Leon.  (Three-judge District Courts always include a Circuit Judge.)