[EL] BIG Campaign Finance News: La. GOP Soft Money Lawsuit Gets 3-Judge Court, Likely Ticket to SCOTUS

Fri Nov 27 14:48:35 PST 2015

    BIG Campaign Finance News: La. GOP Soft Money Lawsuit Gets 3-Judge
    Court, Likely Ticket to SCOTUS <http://electionlawblog.org/?p=77857>

Posted onNovember 27, 2015 2:44 pm 
<http://electionlawblog.org/?p=77857>byRick Hasen 
<http://electionlawblog.org/?author=3>

I know it is late on Friday, the day after Thanksgiving, but here’s some 
very big news. It sounds technical, but it really, really matters.

A federal district courthas 
held<http://www.fec.gov/law/litigation/lagop_dc_opinion.pdf>that the 
Louisiana GOP, under the guidance of tenacious campaign finance lawyer 
Jim Bopp, has the right to have a challenge to McCain-Feingold’s soft 
money ban applied to state parties through a three-judge court. Getting 
there took some very clever drafting, as the court recognized:

    Close observers of the campaign-finance arena may be experiencing
    twinges of déjà 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); RNC v. FEC (“RNC II”), No. 14-cv-00853 (D.D.C.
    Aug. 19, 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 (D.C.
    Cir. 1975) (quoting Ex parte Poresky, 290 U.S. 30, 32 (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.

Why are the stakes so high?  I explained it in August in The 
McCain-Feingold Law May Doom Itself 
<http://www.nationallawjournal.com/id=1202734808860/OpEd-The-McCainFeingold-Act-May-Doom-Itself?cmp=share_twitter>,/National 
Law Journal/, Aug. 16, 2015:

    Tucked within the Bipartisan Campaign Reform Act (the formal name
    for “McCain-Feingold”) is a provision requiring that certain
    constitutional challenges to the law be heard by a three-judge
    court, with direct appeal to the U.S. Supreme Court. This special
    jurisdictional provision makes it much more likely that within the
    next few years the Supreme Court will strike limits on the amounts
    people and entities can contribute to the political parties in
    so-called party soft money.

    If the court does so, it would be knocking down the second of
    McCain-Feingold’s two pillars. The court knocked down the first
    pillar—the limits on corporate and union spending—in the 2010
    case/Citizens United v. Federal Election Commission/.

    It may seem hard to believe that procedural rules for court
    challenges could make a difference as to the fate of campaign
    financing in the United States, but it matters. When a case comes up
    to the Supreme Court through the normal process of federal district
    court or state court decision followed by appellate court review,
    the losing side files a petition for writ of certiorari.

    A Supreme Court decision to deny certiorari has no precedential
    value; no one can cite a certiorari denial as proof the Supreme
    Court believes the lower court got it right.

    But in a rare set of cases (these days confined to certain campaign
    finance, redistricting and voting-rights cases) pursuant to federal
    statute are heard initially by a three-judge federal district court
    with direct appeal to the Supreme Court. In these cases, a court
    decision to affirm a three-judge court or to dismiss the appeal does
    count as a decision that the lower court got right, even if not
    necessarily for its reasoning. This fact makes it much more likely
    that the Supreme Court will hear such cases.

    Justices have said the jurisdictional provision matters.

Since I wrote this oped, Chief Justice Roberts at the oral argument in 
Shapiro v. McManushas confirmed <http://electionlawblog.org/?p=77284>his 
feeling of the obligation to take three-judge court cases:

      CHIEF JUSTICE ROBERTS: I mean, the other
    alternative is it’s a three-judge district court, and
    then we have to take it on the merits.  I mean, that’s a
    serious problem because there are a lot of cases that
    come up in three-judge district courts that would be the
    kind of case – I speak for myself, anyway–  that we
    might deny cert in, to let the issue percolate.  And now
    with the three-judge district court, no, we have to
    decide it on the merits…

As I concluded in my August oped:

    The Roberts Court has proved itself quite deregulatory in
    campaign-finance cases. It has struck down or narrowed severely
    every campaign-finance limit it has ever considered. Further, in the
    2014 McCutcheon case, Roberts suggested a soft money ban is
    unconstitutional.

    But the court has also proven itself willing to not hear every
    campaign-finance case to come its way. Twice, for example, it turned
    down certiorari petitions testing whether the ban on direct campaign
    contributions by corporations violates the First Amendment. In 2010,
    over the dissents of justices Anthony Kennedy, Antonin Scalia and
    Clarence Thomas, it turned down a certiorari petition in yet another
    case Republicans brought to challenge the soft-money rules

    If the Republican Party of Louisiana is able to convince the courts
    this time that the three-judge court is the appropriate route to
    hear its soft-money challenge, then there’s a good chance the court
    will not only take the case, but will strike down what remains of
    McCain-Feingold.

    Read
    more:http://www.nationallawjournal.com/id=1202734808860/OpEd-The-McCainFeingold-Act-May-Doom-Itself#ixzz3sjc1ZVbf

Share 
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77857&title=BIG%20Campaign%20Finance%20News%3A%20La.%20GOP%20Soft%20Money%20Lawsuit%20Gets%203-Judge%20Court%2C%20Likely%20Ticket%20to%20SCOTUS&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20151127/c76116b9/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20151127/c76116b9/attachment.png>