Ruling Moves Soft-Money Ban One Step Closer to Doom

Steven D. Schwinn, John Marshall Law School

Judge Christopher Cooper (D.D.C.) ruled last week that a constitutional challenge to the federal restrictions on soft money by state and local political party committees will be heard by a three-judge district court. The ruling puts the case on the fast-track to the Supreme Court, whose plurality ruling last year in McCutcheon puts the federal soft-money restrictions on extremely shaky ground. The net result: this case, Republican Party of Louisiana v. FEC, will likely go to the Supreme Court; the Court will almost surely strike the soft-money restrictions; and the ruling will open yet another spigot for vast amounts of money to flow in politics.

The case involves BCRA's limits on soft money by state and local political parties. "Soft money" is a contribution to a political party for state and local elections and for "issue advertising," but not for influencing federal elections. (Money for federal elections is subject to other restrictions.) The 2002 Bipartisan Campaign Reform Act flatly prohibits national political parties from raising or spending soft money. But as to state and local party committees, BCRA permits them to use soft money for state and local elections and issue ads, but not for federal election activities. As a result, state and local political party committees use (1) a federal fund, consisting of contributions at and below federal (FECA) limits, for federal elections, and (2) nonfederal funds, consisting of soft-money contributions, for state and local elections and issue ads. (There is a third category, too: Levin funds. Levin funds are a type of nonfederal fund that can be used for some federal election activity. They don't appear to be a game-changer in this case, though.)

The plaintiffs in this case, state and local committees of the Republican Party in Louisiana, challenged BCRA's limits on soft-money. In particular, they challenged (1) BCRA's prohibition on the use of soft-money for federal election activity, (2) BCRA's requirement that state and local committees pay direct costs of fundraising activity for funds used for federal election activity, and (3) BCRA's monthly reporting requirement disbursements and receipts for federal election activity. (BCRA defines "federal election activity" as voter registration, voter identification and GOTV, in addition to campaign communications that refer to a clearly identified candidate for federal office.) The plaintiffs claim these restrictions violate the First Amendment.

The plaintiffs moved to convene a three-judge court to hear their claims. BCRA authorizes such a court to hear constitutional challenges to BCRA, and allows the loser to take the case directly to the Supreme Court. (Constitutional challenges to FECA, on the other hand, go first to an en banc court of appeals. The plaintiffs wanted to by-pass this step and fast-track the case to the Supreme Court, so, learning a lesson from earlier cases, they challenged BCRA's restrictions, not FECA's limits on contributions. Still, a successful challenge would effectively erase FECA's contribution limits.) In this way, the plaintiffs will get the case to the Supreme Court, and quickly.

And that matters, because the Supreme Court has signaled that it's ready to strike at least some soft-money restrictions. In McCutcheon, a plurality defined "corruption"--the only justification for contribution limits that will withstand constitutional scrutiny--quite narrowly, as "quid pro quo corruption or its appearance," or vote-buying. By that definition, the Court is almost sure to strike soft-money restrictions for things like voter registration, GOTV, and issue ads, and maybe others. (How do these things lead directly to quid pro quo corruption?) Even as the Court said in McCutcheon that it wasn't disturbing prior cases upholding restrictions on soft money, its cramped definition of corruption almost surely rules some or all of those restrictions out.

At least the uncertainty created by the Court's definition in McCutcheon caused Judge Cooper to conclude that the plaintiffs' constitutional challenge was "substantial"--a trigger for the three-judge court.

(One potentially complicating factor: The Court is now considering when a complaint is "substantial" so that it triggers a three-judge court, in Shapiro v. McManus. Judge Cooper wrote that if the Court's ruling in Shapiro alters his analysis of "substantial," the three-judge court could dissolve itself. That wouldn't end the case (necessarily), but it would require the plaintiffs to appeal through the D.C. Circuit.)

Judge Cooper's ruling did not address the merits (except to say that the challenge was "substantial"). Still, the ruling puts the case on the fast-track to the Supreme Court (subject to any potential speedbumps from Shapiro), where some or all of the soft-money restrictions on state and local political party committees will likely meet their doom.