United States District Court, District of Columbia
Before: SRINIVASAN, Circuit Judge; COOPER, District Judge;
and CHUTKAN, District Judge.
SRINIVASAN, CIRCUIT JUDGE
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.
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.
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.
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).
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.
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?
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.
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.
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).
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. §
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
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.
§ 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. ...