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Republican Party of Louisiana v. Federal Election Commission

United States District Court, D. Columbia

November 25, 2015

REPUBLICAN PARTY OF LOUISIANA, et al., Plaintiffs,
v.
FEDERAL ELECTION COMMISSION, Defendant

          For 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.

         For 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.

         MEMORANDUM OPINION

         CHRISTOPHER R. COOPER, United States District Judge.

         The 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 federal candidates.

         Soon 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).

         Undaunted, 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.

         Close 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.

         That 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 (1933)).

         But 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.

         I. Background

         A. Statutory Scheme

         As the 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.

         Rather 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), 307(a)(2).

         FECA 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.

         B. Plaintiffs' Challenge

         Plaintiffs 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," [1] 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. ¶ 1.

         While 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.

         Plaintiffs 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.

         C. Relevant Case Law

         As the 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 ...


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