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U.S. backs “soft money” ban

The Obama Administration, providing new support for Congress’ flat ban on political parties’ raising money outside the limits of federal law, urged the Supreme Court to once again uphold those limits by leaving them as is without further review.  The Republican National Committee, the new brief argued, is simply trying to revive the same arguments it made and the Supreme Court rejected seven years ago in upholding Congress’s 2002 ban on so-called “soft money.”  The Court is expected to act within the next month on the GOP’s new challenge in RNC v. Federal Election Commission (09-1287).

The RNC is the first major campaign finance case to reach the Supreme Court since its controversial ruling in January in Citizens United v. FEC (08-205).  That ruling, the Administration’s new filing contended, “does not cast doubt” on the Court’s 2003 ruling that upheld the “soft money” restriction from an earlier challenge by the RNC and others.

Citizens United, the brief argued, dealt only with spending by groups that are entirely independent of political parties.  The RNC challenge is an attack only on contributions to parties, it said.  The analysis the Court used in Citizens United, the brief added, does not mean that soft-money donations to parties lack the potential to corrupt politics and politicians, or that curbs on contributions are an invalid way of “preventing actual or apparent corruption.”

Any claim by the GOP national or state parties that the soft-money curb prevents them from speaking out during campaigns for the presidency or for congressional seats, the government asserted, is unfounded.  “To the contrary,” it went on, “in each election cycle since [the soft-money ban was imposed], the national party committees raised amounts of hard money — between approximately $900 million and $1.24 billion in hard money in each election cycle — that are comparable to or greater than the amounts raised in hard and soft money combined before [the restrictions]….The hundreds of millions of dollars that the parties have been able to raise…are plainly sufficient for ‘effective advocacy.’ ”

The Court had upheld the soft-money ban on parties in the 2003 ruling in McConnell v. FEC.   The RNC and two state or county affiliates have made a new, “as-applied” challenge to the same restrictions.  The challenge was rejected by a three-judge U.S. District Court, and the Republican groups are now pressing their challenge before the Justices.  The case is in a procedural posture that it will take a majority of the Court to dispose of it; that differs from the more common procedure in which a case is simply denied review unless four of the nine Justices voted to hear it.

Given the way the case reached the Court, the new government brief suggested that the Court, without holding a hearing or getting full brief, summarily dismiss the GOP appeal, or else summarily uphold the lower court’s rejection of the challenge.

Besides defending anew the “soft-money” ban, the government renewed an argument that it had made in the District Court but on which the lower court chose not to rule — that is, a claim that the new GOP challenge is barred because it is simply a reiteration of arguments that were offered and lost in the McConnell decision.

The Court will get a reply from the RNC and its affiliated parties before taking action.  It may consider the case within the next two weeks.  If it decides to take on the case, there appears no chance that it would be decided before the Court’s summer recess, and little chance it would be decided to have an impact on GOP activity during the current congressional election campaign, which ends on election day Nov. 4.