United States District Court, D. Columbia
Republican Party of Louisiana, Jefferson Parish Republican
Parish Executive Committee, Orleans Parish Republican
Executive Committee, Plaintiffs: Randy Elf, LEAD ATTORNEY,
BOPP, COLESON & BOSTROM, Terre Haute, IN USA; Richard E.
Coleson, LEAD ATTORNEY, PRO HAC VICE, James Bopp, Jr., THE
BOPP LAW FIRM, PC, Terre Haute, IN USA.
Federal Election Commission, Defendant: Charles Kitcher,
Gregory John Mueller, Harry Jacobs Summers, Kevin Deeley,
Seth E. Nesin, LEAD ATTORNEYS, FEDERAL ELECTION COMMISSION,
Washington, DC USA.
R. COOPER, United States District Judge.
Federal Election Campaign Act (" FECA" )
establishes dollar limits on contributions that individuals
and certain entities may make to a single federal candidate
or political-party committee in a given election cycle. In
1998, the Senate Committee on Governmental Affairs concluded
that certain corporations, labor unions, and wealthy
individuals had sought to circumvent FECA's limits on
contributions to political parties through so-called "
soft money" contributions. S. Rep. No. 105-167 (1998).
In campaign-finance parlance, " soft money" refers
to federally unregulated money contributed to parties for
activities intended to influence state or local elections. To
prevent the use of soft money to fund election activity that
was ostensibly non-federal but in fact benefited federal
candidates, Congress, in the Bipartisan Campaign Reform Act
of 2002 (" BCRA" ), banned national-and state-party
committees from using funds raised in excess of the FECA
contribution limits to engage in activity affecting federal
elections. This " federal election activity"
includes such conduct as voter registration, voter
identification, and get-out-the-vote activities connected to
elections with federal candidates on the ballot, as well as
public communications that refer to clearly identified
after Congress imposed the soft-money ban, the Supreme Court
rejected a facial challenge to its constitutionality in
McConnell v. FEC, 540 U.S. 93, 124 S.Ct. 619, 157
L.Ed.2d 491 (2003). The ban withstood an as-applied challenge
seven years later in RNC v. FEC (" RNC I" ), 698
F.Supp.2d 150 (D.D.C. 2010), aff'd, 561 U.S. 1040, 130
S.Ct. 3543, 177 L.Ed.2d 1119 (2010). And just last year, the
Chief Justice stressed--in his opinion overturning limits on
the aggregate value of contributions an individual can make
to multiple candidates (or parties) in one election
cycle--that " [o]ur holding about the constitutionality
of the aggregate limits clearly does not overrule
McConnell's holding about 'soft money.'"
McCutcheon v. FEC, 134 S.Ct. 1434, 1451 n.6, 188
L.Ed.2d 468 (2014).
Plaintiffs in this case--state and local committees of the
Republican Party in Louisiana--seek yet another bite at the
apple. They have sued the Federal Election Commission ("
FEC" ), alleging that the soft-money ban and two related
BCRA provisions unduly infringe on their First Amendment
free-speech rights. The laws do so, Plaintiffs contend, by
preventing them from funding so-called "
independent" federal election activities--activities not
coordinated with a candidate or campaign--from
state-party-committee accounts that are not subject to
federal contribution limitations and administrative
requirements. The ultimate merits of this latest challenge
are not yet before the Court. At this stage, the Court must
decide only whether Plaintiffs are entitled to have their
claims heard by a three-judge district court, whose final
rulings on the merits could be appealed directly to the
Supreme Court, under BCRA's special judicial-review
mechanism. See BCRA § 403.
observers of the campaign-finance arena may be experiencing
twinges of dé jà vu. Last year, these same
plaintiffs, represented by the same counsel, were among those
who mounted similar challenges to the soft-money ban before
this Court. See Rufer v. FEC, 64 F.Supp.3d 195
(D.D.C. 2014); Rufer v. FEC (" RNC II"
), 64 F.Supp.3d 195 (D.D.C. 2014). This Court
declined to convene a three-judge court to hear those
challenges. While the Court found that the plaintiffs had
presented " substantial, non-frivolous"
constitutional claims, it concluded they lacked standing to
bring those claims before a three-judge court because their
central alleged injury--being prevented from accepting
unlimited contributions to fund " independent"
election activity--could have been redressed only by
invalidating the longstanding base party contribution limits
in FECA. Rufer, 64 F.Supp.3d at
198. BCRA three-judge courts, however, are empowered to
decide only constitutional challenges to provisions of BCRA
itself. Id. Having been deprived of a direct ticket
to the Supreme Court, the Rufer and RNC II plaintiffs
abandoned their appeal of the Court's ruling, and at
least some of them regrouped to fight another day.
day has now come, and the Court is again presented with the
same two questions: Are Plaintiffs' constitutional claims
substantial, and are their alleged injuries redressable by a
BCRA three-judge court? The Court this time answers yes to
both. As in Rufer and RNC II, Plaintiffs have presented
substantial constitutional claims. While the Supreme Court
has twice upheld BCRA's soft-money ban, and recently
affirmed that it is still intact, its ruling in McCutcheon
created widespread uncertainty over the central question
presented here: whether truly independent campaign
expenditures by political parties--if there can be such a
thing--pose the type of corruption risk that the Supreme
Court has held is necessary to justify limiting federal
election spending. Given this uncertainty, Plaintiffs'
claims cannot be fairly characterized as "
frivolous," " obviously without merit," or
" so foreclosed by" Supreme Court precedent that
there is " no room for the inference that the question
sought to be raised can be the subject of controversy."
Feinberg v. FDIC, 522 F.2d 1335, 1339, 173
U.S.App.D.C. 120 (D.C. Cir. 1975) (quoting Ex parte
Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152
unlike in the prior cases, the Court concludes that
Plaintiffs here have standing to present their claims to a
three-judge court. The core injury alleged by the Rufer and
RNC II plaintiffs could not have been redressed without
striking down FECA's base limits, which a BCRA
three-judge court may not do. Assiduously avoiding a frontal
assault on the base limits, Plaintiffs here re-characterize
their injury as simply being prevented from spending funds
from state-party-committee accounts on federal election
activity, without regard to the FECA base limits. Make no
mistake, a ruling for Plaintiffs on the merits would render
largely meaningless FECA's limits on contributions to
state- and local-party committees: Depending on the
contribution limits in the relevant state, if any, an
individual or corporation would be able to contribute sums in
excess of the existing FECA-imposed federal limits to a state
party, and the party could then deposit those funds in a
state account and use them to engage in "
independent" federal election activity on a scale that
would be impossible under existing law. Plaintiffs have
nevertheless established standing because, technically
speaking, the relief they seek can be achieved by
invalidating BCRA's soft-money ban while leaving
FECA's base limits in place. Clever indeed, but not too
clever by half as the FEC suggests. The Court will,
accordingly, grant Plaintiffs' motion to convene a
three-judge district court to hear their claims as required
by BCRA § 403.
Court has previously explained, see
Rufer, 64 F.Supp.3d at 199-200,
Congress amended FECA in 1976 to establish monetary ceilings
on contributions to political-party committees intended to
influence federal elections. Federal Election Campaign Act
Amendments of 1976, Pub. L. No. 94-283, § 112, 90 Stat.
487 (codified at 52 U.S.C. § 30116). These amendments
prohibited contributions to " political committees
established and maintained by a national political party . .
. which, in the aggregate, exceed $20,000; or . . . to any
other political committee . . . which, in the aggregate,
exceed $5,000." Id. In ensuing campaign cycles,
certain corporations, labor unions, and wealthy individuals
sought to bypass these contribution limits by making
so-called " soft money" contributions to political
parties--contributions ostensibly earmarked for state and
local elections or " issue advertising" and thus
not subject to the same legal requirements as contributions
explicitly intended to influence federal elections.
McConnell, 540 U.S. at 122-26. In
2002, Congress responded to this circumvention of FECA's
contribution limits by enacting BCRA, a sweeping series of
amendments to FECA which, among other things, limited
soft-money contributions to political parties. Id.
than specifically defining and prohibiting soft-money
contributions, BCRA imposed a general ban on certain entities
involved in federal elections from collecting funds in excess
of FECA's base contribution ceilings. BCRA § 101,
codified at 52 U.S.C. § 30125, added a new section to
FECA (section 323) prohibiting national-, state-, and
local-party committees from soliciting, receiving, spending,
or disbursing money not raised in compliance with the base
contribution limits. BCRA also amended the overall base
limits by capping individual contributions to state-party
committees at $10,000, and by increasing FECA's
contribution limit for national parties to $25,000 and
pegging that limit to inflation. BCRA § § 102(3),
contains a special judicial-review mechanism that requires a
district court to " certify all questions of
constitutionality of the Act to the United States court of
appeals for the circuit involved, which shall hear the matter
sitting en banc" if the challenge is brought by "
the national committee of any political party, or any
individual eligible to vote in any election for the office of
President." 52 U.S.C. § 30110. Rather than
incorporate FECA's preexisting judicial-review procedure
into BCRA, Congress required that constitutional challenges
to any " provision of" or " amendment made
by" BCRA be heard by a three-judge district court. See
BCRA § 403(a)(3). To expedite Supreme Court review of
the constitutionality of the new statute, Congress provided
that decisions of the three-judge court may be appealed
directly to the Supreme Court. Id.
in this action are the Republican Party of Louisiana ("
state-party plaintiff" ) and the Jefferson Parish and
Orleans Parish Republican Party Executive Committees ("
local-party plaintiffs" ). They seek to use nonfederal
funds to engage in a wide variety of non-coordinated "
federal election activity,"  including conducting mass
mailings exhorting voter registration and voting; performing
voter identification; undertaking other generic campaign
activity; and paying some portion of the salaries of
employees who spend a significant amount of their time on
federal election activity. Verified Compl. ¶ ¶
84-106. Plaintiffs ask the Court to invalidate three BCRA
provisions that they contend stand in the way.
(1) the Ban, BCRA § 101(a), which prohibits
" state, district, [and] local committees" from
using nonfederal funds for federal election activity and is
codified at 52 U.S.C. 30125(b)(1);
(2) the Fundraising Requirement, BCRA § 101(a),
which requires state and local committees to pay "
direct costs," 11 C.F.R. 300.32(a)(3), of fundraising
activity for funds used for federal election activity and is
codified at 52 U.S.C. 30125(c); and
(3) the Reporting Requirement, BCRA § 103(a),
which requires monthly reporting by " political
committees" of federal election activity, including
identifying information on disbursements/receipts for "
person[s] aggregating in excess of $200 for any calendar
year," 52 U.S.C. 30104(e).
Id. ¶ 32, 34, 35. They challenge these
provisions as unconstitutional under the First Amendment (1)
as applied to (a) non-individualized, independent
communications exhorting registering to vote and voting and
(b) non-individualized, independent communications by
Internet; (2) as applied to (a) non-individualized,
independent communications and (b) such communications made
from a so-called independent-communications-only account
(" ICA" ); (3) as applied to all independent
federal election activity; and (4) facially. Verified Compl.
Plaintiffs do not directly challenge the base contribution
limits established by FECA, the clear effect, if not purpose,
of a successful challenge would be to enable circumvention of
those limits. Indeed, the remedy Plaintiffs seek would
effectively eviscerate the limits. After all, if a state or
local party is free to spend (potentially unlimited) funds
from its nonfederal account on federal election activity,
then what purpose would limits on contributions to federal
accounts serve? If the provisions of BCRA to which Plaintiffs
object are struck down, Plaintiffs will be free to raise and
spend tens of thousands of dollars more through their
nonfederal accounts than they would be able to through
federal accounts subject to FECA's limits. In Louisiana,
for example, a state party may accept up to $100,000 over
four years from a single individual, Verified Compl. ¶
109, well above the $10,000 a state party may receive
annually from an individual for purposes of spending on
federal election activity. If an individual were to
contribute the maximum amount allowed under state law to the
Republican Party of Louisiana over a four-year cycle, and
Plaintiffs' BCRA challenge is successful, the state party
could spend $60,000 more on federal election activity as a
result of that donor's contributions than it could as the
law stands today. And in a state with no contribution limits
whatsoever for state parties, striking down the provisions of
BCRA that Plaintiffs challenge would allow for unlimited
contributions to a state party for the purpose of conducting
federal election activity.
request that this Court convene a three-judge court to
adjudicate their challenges pursuant to BCRA § 403. They
have also filed a motion to expedite this action. The FEC
seeks discovery, to which Plaintiffs have agreed to a limited
extent. The Court held a hearing on Plaintiffs'
three-judge-court application and the motion to expedite on
October 27, 2015.
Relevant Case Law
Court observed in Rufer, " this case sits at the
confluence of two currents of First Amendment jurisprudence
concerning federal campaign finance." 64 F.Supp.3d at
200. The first establishes that Congress may, consistent with
the First Amendment, limit contributions to federal
candidates and their parties in order to curb the risk and
appearance of corruption in the legislative process. See
McCutcheon, 134 S.Ct. at 1451 n.6
(noting that the " base [contribution] limits remain the
primary means of regulating campaign contributions" );
McConnell, 540 U.S. at 154-55
(affirming the constitutionality of contribution limits to
political parties and observing that due to " the close
relationship between federal officeholders and the national
parties, . . . large soft-money contributions are likely to
create actual or apparent indebtedness on the part of federal
officeholders, regardless of how those funds are ultimately
used" ); Buckley v. Valeo,424 U.S. 1, 96, 96
S.Ct. 612, 46 L.Ed.2d 659 (1976) (upholding the
constitutionality of FECA's base contribution limits);
see also RNC I, 698 F.Supp.2d at
152 (" Congress may impose some limits on contributions
to federal candidates and political parties because of the
quid pro quo corruption or appearance of ...