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Republican Party of Louisiana v. Federal Election Commission

United States District Court, District of Columbia

November 7, 2016


          Before: SRINIVASAN, Circuit Judge; COOPER, District Judge; and CHUTKAN, District Judge.



         This case presents the latest First Amendment challenge to campaign-finance regulations enacted by the Bipartisan Campaign Reform Act of 2002, known as BCRA. The BCRA provisions at issue bar state and local political parties from using contributions of so-called soft money for activities affecting federal elections.

         We are not the first court to consider First Amendment challenges to BCRA's limits on state and local political parties' use of soft-money donations. The Supreme Court, McConnell v. FEC, 540 U.S. 93 (2003), upheld those measures against a facial challenge under the First Amendment. A prior three-judge district court, relying on McConnell, later sustained the provisions against an as-applied challenge, and the Supreme Court summarily affirmed that decision. Republican Nat'l Comm. v. FEC, 698 F.Supp.2d 150 (D.D.C. 2010) (RNQ, aff'd, 561 U.S. 1040 (2010). We see no salient distinction between the First Amendment claims rejected in those cases and the challenge presented here. We therefore grant summary judgment in favor of the Federal Election Commission.

         I. Background

         A. Statutory Context

         The evolution of federal campaign-finance laws through BCRA has been chronicled in detail elsewhere. See, e.g., McConnell, 540 U.S. at 115-34. Throughout, a central aim of Congress has been to address the appearance or actuality of corruption resulting from large campaign contributions to political parties and candidates. We briefly review the background of the particular statutory provisions at issue here to set the context for our consideration of the challenges presented in this case.

         Congress enacted BCRA to address perceived shortcomings in the framework of campaign-finance laws established under the Federal Election Campaign Act of 1971 (FECA). From the time of FECA, federal law has limited the amount of funds individuals may contribute to political parties (and candidates) in any election cycle. See 52 U.S.C. § 30116(a). Because the statutory definition of "contribution" confines the term to elections for federal office, see Id. § 30101(8)(A)(i), FECA's limitations on the amount of contributions by individuals to political parties solely concern federal elections. Currently, individuals can annually contribute up to $33, 400 to any national political party and $10, 000 to any state or local political party. Id. § 30116(a)(1), (c); 80 Fed. Reg. 5751, 5752 (2015).

         In addition to those ceilings on the amount of contributions by individuals, federal law also has long prohibited contributions altogether (of any amount) from certain funding sources: corporations and labor unions are barred from making any contributions from their general funds to political parties and candidates for federal elections (although those sources can form separate political action committees, which may make contributions). See 52 U.S.C. § 30118. Together, the ban on contributions from certain sources and the caps on contributions from individuals are referred to as FECA's source and amount limitations. E.g., McConnell, 540 U.S. at 122.

         Campaign contributions complying with FECA's source and amount limitations-e.g., funding from individuals in amounts below the statutory caps-can be used by political parties in connection with federal elections, and are known as "federal" or "hard" money. Id. at 122. Contributions falling outside FECA's source and amount restrictions-e.g., funding from individuals in excess of the statutory ceilings, or funding from corporations in any amount- cannot be used by political parties for federal elections, and are known as "nonfederal" or "soft" money. Id. at 122-23. But what about a political party's activities affecting state or local elections but also inherently influencing federal elections, such as a party's voter-registration or get-out-the-vote efforts or its general issue advertisements? Can a party use nonfederal money for those sorts of initiatives, despite the effect on federal elections?

         Before BCRA, the Federal Election Commission (FEC) increasingly allowed the use of soft-money donations for activities affecting both federal and state elections. Id. at 123-24. The FEC's blessing spurred a dramatic increase in the raising and use of soft money by national and state political parties (and also by candidates, who urged donors to give soft money to parties after reaching the ceilings on hard-money contributions). Id. at 124-25. Donations of soft money often dwarfed contributions of hard money. Id. at 124. The upshot was that the "solicitation, transfer, and use of soft money . . . enabled parties and candidates to circumvent FECA's limitations on the source and amount of contributions in connection with federal elections." Id. at 126.

         Congress enacted BCRA in large measure to "plug the soft-money loophole." Id. at 133. First, BCRA took "national parties out of the soft-money business" altogether, id, establishing a wholesale bar against national political parties' raising or using nonfederal money, 52 U.S.C. § 30125(a). Congress additionally understood that the soft-money ban for national parties would have little effect if state and local parties remained free to use nonfederal money for activities affecting federal elections-donors would then simply route soft-money donations to state and local parties instead of national parties. See McConnell, 540 U.S. at 133-34; RNC, 698 F.Supp.2d at 154. Accordingly, Congress, in the provisions directly challenged in this case, restricted the use of soft money by state and local parties.

         The centerpiece of those measures is BCRA § 323(b). 52 U.S.C. § 30125(b). That provision generally prohibits state and local political parties from using soft money to engage in "federal election activity" (FEA). Id. The obvious effect of the general bar against using soft money for FEA is to require the financing of FEA with federal-i.e., hard-money. (The bar is also subject to exceptions having no bearing on our analysis.) The statute defines FEA to include voter-registration activity that is sufficiently proximate to a federal election; voter identification and get-out-the-vote initiatives for elections in which a federal candidate is on the ballot; public communications referring to a clearly identified candidate for federal office, and promoting, supporting, attacking, or opposing a candidate for that office; and services provided by a state-party employee who spends more than twenty-five percent of her work time on activities in connection with a federal election. Id. § 30101(20)(A).

         As a corollary to § 323(b)'s general bar against using soft money for FEA, § 323(c) of BCRA prohibits the use of soft money to raise funds for FEA. Id. § 30125(c). In addition to those bans on devoting nonfederal funds to FEA, BCRA requires state and local political parties to submit periodic reports documenting their receipts and disbursements of federal funds for FEA if those amounts equal or exceed $5, 000 in any year. Id. § 30104(e)(2), (e)(4).

         B. Plaintiffs' Claims

         The plaintiffs in this case are various political-party organizations from the state of Louisiana. They include a state political party (the Republican Party of Louisiana) as well as local party affiliates (the Jefferson Parish and Orleans Parish Republican Party Executive Committees). Plaintiffs desire to undertake a variety of activities constituting FEA.

         Plaintiffs challenge the BCRA provisions barring their use of soft money to conduct FEA and to fundraise for FEA (§§ 323(b)-(c)), as well as BCRA's requirement that they report their receipts and disbursements of hard money for FEA. Plaintiffs contend that those measures violate the First Amendment on their face and as applied to specific FEA in which they wish to engage. The common thread linking the range of FEA implicated by plaintiffs' as-applied challenge is that the activity would be "independent, " in that, according to plaintiffs, they would conduct the activity without any coordination with a federal candidate or campaign. Plaintiffs argue that the challenged BCRA provisions unconstitutionally burden their First Amendment rights by restricting their ability to use nonfederal money to finance independent communications and other independent activity qualifying as FEA. They state that they have wanted to use soft money for FEA in past and current election cycles and desire to do so in future cycles as well. Ver. Compl. ¶¶ 77, 111-14. For instance, plaintiffs would like to use soft money for independent voter-registration activity and for independent communications supporting or opposing identified candidates for federal office. Id. ¶¶ 84-105.

         BCRA § 323(b) bars the use of nonfederal funds for that (or any other) type of FEA. While plaintiffs' challenge encompasses not only § 323(b) but also § 323(c)'s associated bar against using soft money to raise funds for FEA, as well as BCRA's reporting requirements for FEA, plaintiffs explain that they "primarily argue against" § 323(b), "because it is central and the other provisions are derivative." Pis.' Mem. Supp. Mot. ...

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