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GOP files appeal on “soft money”

Leaders of the Republican Party, claiming that parties are put at a “profound disadvantage” by current limits on money in politics, on Friday afternoon asked the Supreme Court to free party organizations at national and state levels from curbs on so-called “soft money.”  The jurisdictional statement in Republican National Committee, et al., v. Federal Election Commission, et al. (docket 09-1287) is here.  Under federal campaign finance law, the Court is supposed to give such cases faster-than-normal review.  Whether a ruling could come in time to have an effect on this year’s congressional elections is unclear.  (UPDATE: A motion to expedite has now been filed; review before summer is doubtful. See post above.)

The new appeal, in a legal form that the Court has little choice but to decide it, is an attempt to expand the impact of the Justices’ ruling in January, in Citizens United v. Federal Election Commission, applying First Amendment free speech rights more broadly to campaign finance activity. The GOP appeal also argued that the Citizens United ruling undercut the basis of a seven-year-old decision by the Court upholding restrictions on political parties’ ability to raise and spend so-called “soft money” — that is, money that will not be spent to support a candidate, but to support state candidates and to pay for voter registration drives and get-out-the-vote efforts.  Parties cannot raise any more of this money than the funds they can gather to support a specific candidate for Congress or the Presidency, which are subject to specific ceilings.

Joined in the appeal are the GOP’s nationwide organization, the Republican National Committee, its chairman, Michael Steele, plus the California state GOP and the San Diego County GOP.   These are regular political organizations, not independent political entities, and they are not organized as corporations.  Different campaign finance limits apply to them than to corporations that finance political activity — the main beneficiaries of the Court’s Citizens United ruling.  Still, the GOP entities sought to buttress their constitutional claims by relying heavily upon the free speech rhetoric of the January ruling.

In arguing that “soft money” curbs are unconstitutional when they are applied to political parties, the GOP said that, after the Citizens United ruling, “there can be no doubt” that the only kind of corruption Congress can attack in campaign finance law is so-called “quid pro quo” corruption — that is, donating dollars and getting a political favor directly in return.  The January decision, the appeal added, also makes clear that the danger of that kind of corruption “arises with extraordinary infrequency.”

If the Court were now to uphold the “soft money” restrictions as they apply to parties, the GOP said, “the Court would have to indulge the far-fetched supposition that, while a multimillion-dollar independent advertising campaign [the kind allowed by Citizens United] cannot be a vehicle for quid pro quo corruption, the risk that a candidate would be willing to sell his vote in exchange for donation to his party’s get-out-the-vote drive is so dire that Congress can constitutional prohibit all donations” of “soft money.”

A three-judge federal District Court rejected the GOP’s challenge in a ruling in late March (see this post).  The lower court said that the Supreme Court, in its 2003 decision in McConnell v. FEC, had upheld the “soft money” restriction on political party fund-raising even though, in that case, the parties wanted to raise money for the same purposes that they now wanted to pursue.  The new challenge, that court said, amounted to “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.”

The Supreme Court, of course, is free to reconsider its McConnell ruling as it applies to “soft money” and the parties.  In fact, in Citizens United, it did overturn a part of the McConnell decision — the limits on broadcast ads by corporations and labor unions during election season.  In the new appeal, the GOP did not ask the Court directly to overturn the McConnell ruling on the “soft money” issue, but only to strike down those limits as applied to political parties when they want to raise and spend money for party-building activities or for state candidates.  The appeal asserted, though, that the “soft money” ban is “unconstitutional in most, if not all, its applications,” and, in a footnote, it suggested that the Citizens United ruling may mean that the ban could never be constitutionally enforced.

The appeal does not use the phrase “soft money” to refer to the curbs it is challenging.  Rather, it refers to it by the more technical term of “nonfederal money.” But it means the same thing.  The restriction, the GOP contended, “is incompatible with the Nation’s political history and constitutional tradition because it severely restricts the ability of political parties to finance political activities.”

Indeed, it added, the “blanket prohibition on nonfederal money does not preserve a single political activity that a national party can finance with nonfederal money.  No matter how attenuated the link to federal elections, a national party cannot speak unless its speech is financed by funds raised in compliance with [the law’s] source and amount limitations.  Even if those limitations may be a reasonable response to the potential for quid pro quo corruption of federal officeholders where the money is to be spent ‘for the purpose of influencing’ a federal election [citing the law], those requirements are unwarranted and unconstitutional where a national party is spending funds for other purposes, such as state campaigns, litigation, or redistricting.”

Directly at issue in the case is a provision in the 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 federal campaign.  The $30,400 figure results because it is indexed to take account of inflation. 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.”

Before that law was passed, federal campaign laws only put limits on donations to political parties when those were to be used to directly influence an election — that is, to support or oppose a specific candidate.  Thus, “soft money” — for uses other than directly influencing an election — was not restricted by federal law.  The 1992 statute changed all of that, imposing a flat ban on national parties’ use of “soft money” for all purposes.

Although the Supreme Court upheld those curbs in McConnell, that ruling was based only on the language of the law as it would apply in any factual situation — in other words, the Court rejected only a “facial challenge.”  Then, two years ago, the GOP started a new challenge, this time aiming at the restrictions as they applied to what it calls its nonfederal activity — supporting state candidates, and party-building campaigns to sign up new voters or get them to the polls.

One of the main reasons the GOP contends that its “soft money” activity would not lead to political corruption is that it has filed formal pledges in court that it would not use any members of Congress or candidates for national office to solicit “soft money” donors, and would not help such donors get “preferential access” to such officeholders or candidates — commitments that the Federal Election Commission presumably could enforce.  While the District Court noted that pledge, it said that the McConnell decision, in rejecting a facial challenge to “soft money” for parties, had also relied on the close relationship between national officeholders and the national parties.  Only the Supreme Court can say whether that is still a justification for the ban, the District judges said.