Court Upholds Soft Money Ban for Now

Posted March 26, 2010 at 5:35pm

After watching its agenda unravel in recent months, the campaign finance reform community finally caught a break on Friday, when a three-judge panel upheld an 8-year-old ban on unlimited “soft money” political contributions to political parties.

“The court got it right,” an upbeat-sounding Paul Ryan, a Campaign Legal Center lawyer, said in an interview on Friday.

The case, Republican National Committee v. Federal Election Commission, was decided by the U.S. District Court for the District of Columbia. In its decision, the judges upheld spending curbs included in the 2002 Bipartisan Campaign Reform Act that cut off a one-time reliable revenue source for party committees: unregulated financial help from corporations and labor unions.

Ryan’s cheers on Friday came just two months after the Supreme Court decided a landmark campaign finance case, Citizens United v. FEC, which threw out many restrictions on corporate and union political expenditures — and brought doomsday predictions from political reformers. When the much-anticipated Citizens United ruling was issued in January, Democracy 21 President Fred Wertheimer called it “a disaster for the American people and a dark day for the Supreme Court.”

As of press time, RNC lawyers were still plotting whether to appeal the decision to the Supreme Court, whose conservative 5-4 majority has exhibited skepticism of campaign finance laws championed by Wertheimer and others in the past decade.

Kenneth Gross, a campaign finance lawyer at Skadden Arps Slate Meagher & Flom, called the court’s decision on Friday “very significant.” In this case, Gross said, the panel’s decision is important not for what it decided but for what it didn’t.

“If this case had gone the other way, this case would’ve torn a major, gaping hole in the restrictions on soft corporate and labor money going into the national party committees,” Gross said. “For the time being, that ban is upheld.”

Even if the Supreme Court decides to hear the RNC case, Gross said it’s not a “slam dunk” that the court’s conservative majority would take RNC Chairman Michael Steele’s side. Gross said there are distinct differences between the issues involved in the high court’s January decision and the RNC’s new case.

“That case will be a tough decision for the Supreme Court,” Gross said. “There will be many who think that the case may be reversed on the 5-4 make-up on the Citizens United case. … I don’t think it’s any kind of slam dunk assumption that the Supreme Court will reverse the three-judge district court.”

“I think it’s going to be a tough decision for them,” Gross added.

Ryan and Wertheimer both said it’s uncertain how the Supreme Court’s conservative majority would interpret BCRA’s soft money bans, which were subsequently upheld by the high court in a legal challenge brought by now-Senate Minority Leader Mitch McConnell (R-Ky.) in 2003.

“We’re looking ahead. This is not a done deal,” Ryan said. “This case will likely be heard by the Supreme Court, and despite Chief Justice [John] Roberts’ statements in his confirmation hearings that he would respect precedent, his decisions on the bench have reflected a great willingness to depart from precedent to engage in activist decisions and overturning well-established precedents.”

“Anyone’s guess is as good as mine as to whether the Roberts Court will respect its own precedent,” he added.

Wertheimer also applauded Friday’s district court decision, which he called a “major victory in the ongoing battle to prevent the use of unlimited campaign contributions to buy and influence parties and their federal candidates.” Still, he too said he’s not holding his breath as to how the Supreme Court will rule if the RNC appeals.

“We’ll see what happens, but this court recognized in reaching this decision that Citizens United did not disturb the previous Supreme Court decision upholding the soft money ban,” Wertheimer said. “We take it one case at a time.”