Even as Republican Party officials struggle to quell the uproar over their questionable spending, they are pressing ahead with a bid to win access to vast new sources of unregulated money.
So far, lower courts have rebuffed the GOP effort. A three-judge district court panel last month threw out a Republican legal challenge to the McCain-Feingold law's ban on soft (unregulated) money. In Republican National Committee v. Federal Election Commission, the panel rejected GOP officials' argument that they should be allowed to use soft money for such activities as issue advocacy, state races and redistricting.
But the case is on a fast track to the Supreme Court, and in the wake of the high court's sweeping Citizens United v. Federal Election Commission ruling, the soft money ban looks shaky. On the one hand, the Supreme Court's landmark McConnell v. FEC ruling decisively upheld the ban in 2003. On the other, a different mix of justices now sits on the court -- and the majority appears hungry to roll back the election laws.
Some Democrats are already pressing to relax the soft money rules, just like the RNC.
At the same time, nonparty political groups such as corporations, unions, advocacy organizations and so-called 527 groups face fewer restrictions than ever and are poised to pour millions into the 2010 elections. One new GOP-friendly 527 group, American Crossroads, has already convinced donors to commit some $30 million and aims to raise $60 million for Republican candidates, National Journal recently reported.
On top of the Supreme Court's January ruling in Citizens United, which ended the ban on direct corporate and union political spending, a lower court last month upheld a challenge to existing limits on contributions to activist groups making independent political expenditures. (That ruling was handed down on March 26, the same day as RNC v. FEC.)
In SpeechNow.org v. FEC, a D.C. Circuit Court unanimously upheld a free speech group's challenge to the contribution limit for political action committees that spend independently from candidates or parties. However, the court rejected the group's argument that it should also be allowed to skirt PAC registration and disclosure rules.
"It's a blockbuster ruling," said Paul M. Sherman, a staff attorney at the Institute for Justice who helped argue the case on behalf of SpeechNow.org. "We're going to see a very vocal 2010 election season. Any group, no matter what issue they care about, can copy SpeechNow's model and speak as loudly as they are able to."
All this ups the ante for the national political parties -- and not just the RNC. Some experts and even judges maintain that recent rulings freeing up outside groups could now stack the deck against political parties. It's an argument that party officials themselves may begin to embrace, particularly if nonparty organizations spend aggressively in the coming midterm.
Some Democrats, in fact, are already pressing to relax the soft money rules, just like the RNC. Officially, the Democratic National Committee opposes the RNC's bid to overturn the soft money ban. Indeed, DNC officials have intervened in RNC v. FEC to defend the ban. But a Democratic Party organization, the National Democratic Redistricting Trust, has asked the FEC for permission to allow members of Congress to help it raise soft money for redistricting activities.
Reform advocates have asked the FEC to reject that request, arguing that redistricting is clearly connected to elections, and therefore subject to the soft money ban. Ironically, the DNC makes that exact argument in its RNC v. FEC litigation, the reformers argue.
"That's contradictory, to say the least," said Paul S. Ryan, associate legal counsel for the Campaign Legal Center, which filed the comments along with Democracy 21. Ryan added that the National Democratic Redistricting Trust's request "is evidence that parties are looking to get soft money back in the system."
RNC officials will waste no time appealing the lower court's rejection of its soft money challenge to the Supreme Court. A confidential RNC PowerPoint presentation disclosed by Politico last month featured a final slide spotlighting the strategic importance of the RNC v. FEC case, and stating: "Immediate appeal to U.S. Supreme Court."
Some legal experts argue that, even before this high court, the RNC will be hard-pressed to challenge the constitutionality of McCain-Feingold law, officially known as the Bipartisan Campaign Reform Act. The McConnell v. FEC record topped 100,000 pages, including exhaustive testimonials from lawmakers on the corrupting influence of soft money, noted Monica Youn, a counsel at the Brennan Center for Justice at New York University's School of Law.
"This is a challenge to the second half of BCRA, and the record on this half is really very solid," said Youn. "It's a record that took months of hearings and hundreds of thousands of pages to compile. And for this court to disregard that would really be, I think, shocking."
Of course, this year's Citizens United ruling also shocked many election lawyers, at the Brennan Center and elsewhere. As RNC v. FEC moves one step closer to the high court, political players of all stripes are waiting for the other shoe to drop. Noted Youn: "The political world is watching this case very closely."
Get the latest news and analysis delivered to your inbox. Sign up for National Journal's morning alert, Wake-Up Call, and afternoon newsletter, The Edge. Subscribe here.
Leave A Comment