Wednesday, August 20, 2014

The Next Campaign Finance Law to Go Down?

Judge Christopher R. Cooper (D.D.C.) earlier this week in Rufer v. FEC granted a plaintiff's motion to send its First Amendment challenge to the restriction on contributions to political parties to the en banc D.C. Circuit for consideration.  But in the same ruling, Judge Cooper denied a motion to temporarily enjoin the law.

The seemingly mixed ruling means that the court sees the challenge as both including "substantial, non-frivolous constitutional claims that are not clearly foreclosed by Supreme Court precedent" (thus meeting the statutory standard for appointment of an en banc circuit court under FECA) and "in tension with forty years of Supreme Court jurisprudence upholding contribution limits to political parties" (thus failing the likely-to-succeed-on-the-merits standard for a preliminary injunction).

In plain language, the ruling seems to reflect the court's view that while current Supreme Court doctrine supports contribution limits to political parties, that's likely to change. 

He's probably right.

But Judge Cooper's decision is not a ruling on the merits.  It only sends the constitutional question to the en banc D.C. Circuit ("after developing an appropriate factual record"), thus fast-tracking it to the Supreme Court, and presages the likely end result with this Supreme Court: the federal limit on contributions to political parties will almost surely go down.

The case was brought by the national and state Republicans and Libertarians challenging the federal restriction on base contributions to political parties.  The plaintiffs argued that they could segregate contributions for independent expenditures in separate accounts, and therefore avoid quid pro quo corruption or its appearance--the two government interests that the Court has said justify contribution limits to candidates and political parties.  Judge Cooper said it better:

This case sits at the confluence of two currents of First Amendment jurisprudence concerning federal campaign finance: the constitutional permissibility of limiting contributions to federal candidates and political parties, and the constitutional impermissibility of limiting contributions to independent entities whose campaign expenditures are not coordinated with candidates or parties.  Plaintiffs rest their challenge on the latter current; the FEC resists it on the former.

Judge Cooper ruled that the plaintiffs' free speech challenge to the contribution limits raised significant enough questions to justify sending the issue to the en banc D.C. Circuit, a procedure available under FECA designed to get important issues quickly before a full circuit court and ultimately the Supreme Court.  But at the same time, Judge Cooper denied a plaintiff's motion for a preliminary injunction, ruling that well settled (for now) Supreme Court precedent meant that the plaintiffs couldn't show that they were likely to succeed on the merits.

Taken together, the two sides of this ruling mean that the court understands the current state of the law, but can also read the tea leaves--which say that the law's likely to change.

Judge Cooper's decision isn't a ruling on the merits.  Still, it fast-tracks the case to the en banc D.C. Circuit and then, inevitably, to the Supreme Court.  It also presages the likely result in this Supreme Court: contribution limits to political parties will almost surely go down.

http://lawprofessors.typepad.com/conlaw/2014/08/the-next-campaign-finance-law-to-go-down.html

Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink

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