Democracy 21, Public Citizen and the Campaign Legal Center joined today in filing an amicus brief defending the constitutionality of the ban on parties using soft money in federal elections. The brief was filed in Republican Party of Louisiana v. Federal Election Commission, a case   pending before a three-judge panel of the U.S. District Court for the District of Columbia.

“This is the third time that Republicans have challenged the constitutionality of the provisions in the Bipartisan Campaign Reform Act banning parties from using soft money in federal elections,” according to Fred Wertheimer, president of Democracy 21 and one of the lawyers who filed the brief.

“Republicans lost their two previous legal challenges to the soft money provisions in the Supreme Court,” Wertheimer said. “Our brief makes clear that these past Supreme Court decisions are controlling in this case and we believe the decisions will result in the Republicans losing this third challenge as well.” “We urge the Republicans to finally recognize after this case is resolved that “three strikes and you’re out,” Wertheimer said.

The two previous cases that upheld the soft money ban in the Supreme Court are McConnell v. FEC (2003) and Republican National Committee v. FEC (2010). 

Scott Nelson of Public Citizen served as lead counsel on the amicus brief filed today by the three reform groups. Lawyers from the law firm of WilmerHale, Democracy 21 and the Campaign Legal Center also served as lawyers on the brief.

Excerpts from the amicus brief of the reform groups:

In this action, the Republican Party of Louisiana and two of its local committees (collectively, “the Louisiana Republicans”) raise what they describe as a series of as-applied and facial challenges to provisions of the Bipartisan Campaign Reform Act (BCRA) limiting the sources and amounts of contributions that state and local party committees may use to finance “federal election activity” as defined in BCRA. The Supreme Court upheld those provisions, which prohibit the use of “soft money”—that is, contributions not subject to the source and amount limits of the Federal Election Campaign Act (FECA)—against facial constitutional challenges in McConnell v. FEC, 540 U.S. 93, 161–73 (2003), and as-applied challenges in Republican National Committee v. FEC, 561 U.S. 1040 (2010), aff’g 698 F. Supp. 2d 150 (D.D.C. 2010) (RNC). …. 

The Louisiana Republicans’ assertion that Congress cannot limit  contributions used by state and local parties for “independent” federal election activity does not square with the decisions in McConnell and RNC rejecting facial and as-applied constitutional challenges to the same BCRA soft-money provisions. In neither case did the decisions sustaining the soft-money provisions rest on whether a state party’s federal election activity was coordinated with or independent of a federal candidate, and the Louisiana Republicans’ current reliance on that consideration is inconsistent with the reasoning of both decisions. 

The Louisiana Republicans’ arguments not only disregard controlling authority, but also rest on a number of false premises. The Louisiana Republicans assert that BCRA’s limits on the sources and amounts of contributions that state and local parties can use for federal election activity is not really a contribution limit, but a spending limit subject to strict First Amendment scrutiny. That argument was rejected both in McConnell and in RNC, and it reflects a fundamental misunderstanding of the difference between contribution and spending limits. The BCRA provisions at issue do not limit how much state and local parties can spend on federal election activity. Rather, they provide that the funds used for such spending must be raised in limited amounts, and only from sources permissible under FECA. That is what a contribution limit is. 

The Republicans also contend that because the spending in which they wish to engage using contributions not subject to FECA limits will be “independent,” the spending cannot pose a risk of corrupting or appearing to corrupt candidates. That argument overlooks that the threat of actual or apparent corruption at which the state-party soft money provisions are directed does not come from the party spending, but from the contributions themselves. It is the close and unique relationship between parties and their candidates, which differentiates parties from other campaign spenders, that creates the threat. In light of that relationship, the possibility of corruption (and of circumvention of other anticorruption measures) inheres in unlimited contributions to parties and exists regardless of whether the party proceeds to spend those funds independently or in coordination with the candidate. In other words, the evil the statute targets is not that parties will corrupt candidates by spending to support their candidacies, but that contributors will corrupt candidates, or appear to corrupt them, by contributing to entities that are part of a common political enterprise with the candidates. 

Finally, the Louisiana Republicans wrongly contend that McConnell and RNC have been superseded by a fundamentally different conception of the government’s anti-corruption interest exemplified in the plurality opinion in McCutcheon v. FEC, 134 S. Ct. 1434 (2014). Even if statements in an opinion subscribed to by four Justices were binding on this Court, however, the soft money restrictions are fully compatible with the McCutcheon plurality’s view of corruption because they rest on a record demonstrating that very large contributions to party organizations present opportunities for the reality or appearance of prearrangement and corrupt bargains that involve more than mere “ingratiation” and “access.” See id. at 1441.

 

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