The Republican National Committee is asking a federal court to restore the ability of national parties to raise unlimited amounts of money and to spend it to help elect state-level candidates.
The case focuses on hotly contested governor's races in New Jersey and Virginia. The 2002 McCain-Feingold campaign financing law (PL 107-155) does not allow national parties to give money directly to state candidates. The RNC wants to change that so it can expressly back the party nominee for governor, advertise and send out mailings on behalf of state or local Republican candidates and make get-out-the-vote calls.
The law also bans the parties from taking unlimited big-dollar contributions from corporations, unions and wealthy donors -- a type of donation known as "soft money" -- and the RNC wants to reverse that as well.
The case will be heard Aug. 27 by a three-judge panel of the U.S. District Court for the District of Columbia, and the ruling could be appealed straight to the Supreme Court. An RNC victory would deal a major blow to the landmark campaign finance law named for Sens. John McCain of Arizona and Russ Feingold of Wisconsin, and open the door to a more prominent role for the national parties in state-level races.
Republicans say the law violates the First Amendment by preventing national parties from helping state-level candidates.
"It is ridiculous to treat a national party or a state party as if they are only interested in federal elections," said James Bopp Jr., an Indiana lawyer representing the RNC in a lawsuit against the Federal Election Commission.
The FEC replied that Congress has repeatedly limited campaign contributions and the Supreme Court has upheld those restrictions.
Campaign watchdog groups maintain that given the close relationship between national parties and federal officeholders, deep-pocket contributors still will wield more influence in Washington if they're allowed to raise unlimited sums, even if that money is channeled to state-level contests.
"It's always hard to find a smoking gun," said Monica Youn, a lawyer for the Brennan Center for Justice at New York University's Law School, which is representing Common Cause, League of Women Voters and the U.S. Public Interest Research Group.
"But it's hard to say, if you're a lawmaker in a close or contested district, and someone tells you they've written a massive check to your political party that's intended to benefit you -- it's hard to say that that doesn't influence your decision-making."
A 5-4 majority of the high court upheld the soft-money ban in 2003; the ruling arose from a case that Sen. Mitch McConnell, R-Ky., brought against the FEC to prevent limits curbs on fundraising. But some say that result could change with three new members on the high court: Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito, who were nominated by President George W. Bush, and new Justice Sonia Sotomayor, chosen by President Obama.
"The answer the Supreme Court has given is that the parties are unique in that they provide unparalleled access to officeholders and party leaders and therefore raise the possibility of corruption in ways that other groups don't," said Richard L. Hasen, a professor who specializes in campaign law at Loyola Law School in Los Angeles. "But the Supreme Court is moving much more in a deregulatory direction."
'Perfect Storm' of Cases
The case is one of three pending federal cases that could significantly change corporate influence on federal campaigns.
On Sept. 9, the Supreme Court will hear arguments in Citizens United v. Federal Election Commission, a case that addresses spending by nonprofits, such as those that claim an educational or business purpose, before federal elections. A federal District Court in Louisiana has a Nov. 12 hearing in another RNC case, Cao v. FEC, which addresses contribution limits that apply when candidates coordinate spending with state and national parties.
The combination of the three cases represent a "perfect storm" that could "open the floodgates for a return to the undue influence that so troubled the Supreme Court in its McConnell decision in 2003," said Paul S. Ryan, a lawyer with the Campaign Legal Center, which is representing McCain and Feingold as interveners in the RNC case to be heard next week.
History of Contribution Limits
The McCain-Feingold law grew out of concern that big-dollar contributions gave at least the appearance of corruption. Soft money totaled nearly $500 million in 2000 before the ban.
Before McCain-Feingold, soft money was not included in a 1907 ban on corporations making contributions to any federal election, a 1947 expansion to ban contributions from unions and subsequent contribution limits because the money wasn't spent advocating for specific federal candidates.
"Federal candidates, although prohibited by law from receiving soft money, directly solicited soft-money donations to their own national and state parties, and these candidates provided lucrative benefits and access to the highest government officials in exchange for the largest donations," the FEC's general counsel, Thomasenia P. Duncan, said in her written argument to the court.
"Given this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those funds are ultimately used," the Supreme Court said in upholding the soft-money ban.
But to those who worry about poking holes in the law, Bopp replied: "Freedom is not loophole."