In their ongoing crusade to roll back campaign-finance regulations, Republican Party leaders have mounted a legal attack on the bipartisan “soft money” ban enacted in 2002. If they succeed, campaign-finance watchdogs warn, American politics will revert to the unsavory practices of the 1990s when wealthy donors, corporations, and unions directed unlimited contributions to party coffers, often in exchange for access and influence.
Soft money is already making its way back into the system, given the big donations flowing to unrestricted super PACs and to special, high-dollar political party accounts. As the Prospect’s Eliza Newlin Carney has noted, the Supreme Court, in its 2014 McCutcheon v. FEC ruling, did away with aggregate limits on what donors may contribute to candidates and parties each year. Then the Senate added a rider to the 2014 spending bill that dramatically increased the limits that individuals may give to special party accounts that pay for conventions, buildings, and recounts.
Now Republicans have set out to finish the job by asking the courts to overturn the 2003 Supreme Court decision that upheld the 2002 soft-money ban, officially the Bipartisan Campaign Reform Act and better known as the McCain-Feingold law for its chief Senate authors. Last year, the Republican Party of Louisiana lodged a lawsuit against the Federal Election Commission, arguing that the part of the McCain-Feingold campaign-finance reform law that banned “soft money” has been rendered unconstitutional by the Court’s 2010 Citizens United v. FEC ruling, which lifted all limits on independent political spending.
The McCain-Feingold law requires state party committees to adhere to federal contribution limits when engaging in what the law terms “federal election activity,” which includes voter identification, registration, and get-out-the-vote efforts in the runup to federal elections, as well as any activities that “promote, attack, support, or oppose” a federal candidate.
The Republican Party of Louisiana argues that the state GOP should be free to pay for such activities through an “independent communications-only account” that doesn’t adhere to federal contribution limits.
The case is being led by conservative campaign-finance lawyer Jim Bopp, who over the years has gained notoriety for his multiple attacks on federal campaign-finance laws—most notably the Citizens United case that opened the doors to corporations and unions to independently spend unlimited amounts of money on politics.
“Bopp is tenacious,” says Larry Noble, general counsel at the Campaign Legal Center. “The reality is that he has been, for 30 years or so, banging his head against the door, trying to break it down.”
When the court’s make-up changed with the departure of Justice Sandra Day O’Connor in 2006, Noble says, the Court majority became more aligned with Bopp’s views. Still, Bopp’s prior attempts to roll back the soft-money ban were stopped by lower courts that ruled the Supreme Court had already sufficiently weighed in on the issue.
But Bopp now argues that since the Supreme Court’s McConnell v. FEC ruling to uphold the soft money ban in 2003, the Court’s campaign-finance jurisprudence has changed enough—in both Citizens United and McCutcheon—to warrant reconsideration. In November, a D.C. district judge agreed, and granted Bopp’s application to bring the case before a special three-judge panel.
Though experts say it’s unlikely the panel will overturn the ban, the lower court’s decision to take up the case remains a major strategic win for Bopp. As election law expert Richard L. Hasen wrote in The Atlantic, “thanks to a quirk in the McCain-Feingold law, any appeal in the case would go directly to the Supreme Court. The appeals provision makes it very likely the Court will take the case, because unlike a usual decision not to hear a case, rejection of an appeal would indicate the Supreme Court’s belief that the lower court reached the right result.”
As the case makes its way toward a likely Supreme Court showdown, campaign-finance reform advocates are uncertain how the Court’s current eight-member divide might affect the outcome. If an evenly divided Court did rule in favor of Bopp and the Louisiana GOP, Noble says it would eviscerate the soft-money ban for state committees. He warns that with the higher limits that now apply to joint-fundraising committees, soft money raised at the state level would inevitably seep into the federal party apparatuses.
“There’s no question that what this would do is allow soft money to flood into federal elections,” Noble says. “It would really have a major effect.”
Reform advocates say this case raises the stakes in their campaign to convince the Senate to confirm President Barack Obama’s Supreme Court nominee, Merrick Garland. Garland is regarded as a reliable liberal vote on election regulation matters, who could help shift the Court back toward campaign-finance curbs.