On Thursday, the Republican National Committee announced the filing of two federal lawsuits, one in the District of Columbia and one in Louisiana, challenging the constitutionality of two aspects of the Bipartisan Campaign Reform Act (“BCRA”), also known as McCain-Feingold.
The first lawsuit challenges the non-federal “soft money” ban. The crux of the argument is that the ban effectively makes a national party into solely a federal party with no offsetting benefit to match that restriction — and that the ban is inherently unconstitutional.
In a conference call to announce the lawsuits, RNC Chairman Mike Duncan noted that the RNC wants to be able to “open accounts in Virginia and in New Jersey immediately to help elect state-wide officers there” and that they were not allowed to raise money to help Bobby Jindal in his race to become governor of Louisiana nor give to the state party to help Jindal; effectively the rules make the party only relevant in federal elections.
“I believe this is an infringement of my constitutional rights of both association and free speech.” Mr. Duncan noted that “after BCRA was passed, we lost about 40 percent of our money…and a great deal of that would have gone to state parties.”
The RNC wants to make sure that the 2010 redistricting process is not so dominated by Democratic wishes that it makes Republican electoral opportunities even more daunting than they already will be, given the advantages of incumbency for the Democrat majority.
In order to influence the redistricting process, according to Chairman Duncan, the RNC must be able to raise money to fund “three legs of the stool”: to acquire and master relevant technology (including mapping technology), to assist in the election of decision-makers, and to fund litigation to challenge “a one-party Democrat process” and defend outcomes achieved through bipartisan cooperation.
Duncan is also interested in getting involved with state initiatives, mentioning California specifically. It is, after all, the poster child of too-much-stuff-on-the-ballot.
The second lawsuit, filed in Louisiana, challenges “coordinated expenditure rules.” The RNC is limited to $84,100 in expenditures that can be coordinated with certain types of campaigns, in this case the campaign of Anh “Joseph” Cao, who will be competing in the runoff election for the seat currently held by the federally-indicted Democratic Congressman William Jefferson (in whose freezer $90,000 of cash was found). According to Chairman Duncan, “We want to do more.”
Duncan believes the current rules force political parties to “come up with other ways,” such as creating “independent expenditure units” which are “very difficult to work with. You give them the money and you’re not sure what the message is going to be.”
The theory of BCRA is to minimize corruption, but the RNC asserts “there is no possible corruption in allowing us to be coordinated with a candidate.” The corruption question is a likely key to any Supreme Court decision. According to Duncan, “Practice has shown us on an as-applied basis that there is no corruption. Actually, the corruption may have been pushed to third parties who can engage in many activities using non-federal money — activities that we as a national party can’t be engaged in — yet they don’t have the transparency or accountability that the national party does.” He is likely to find at least a few allies in that view on the Supreme Court.
Importantly, these are “as-applied” challenges rather than “facial” challenges, meaning there is now evidence of how the law actually does work rather than how it should work. The benefit of as-applied challenges is that they are based on real-life experience. The downside is that they are usually used to narrow the scope of a law rather than invalidate it in its entirety.
As-applied challenges were missing, obviously, in the first cases to challenge BCRA because the law had not been in force for long enough. But now we’ve had several years of operating under this greatest assault on the First Amendment since the Sedition Act of 1798. Duncan believes, and I agree with him, that “we have a compelling fact circumstance this time,” namely better than during the 2003 McConnell challenge to BCRA, in which a 5-4 majority upheld most of its key provisions. One of those 5 votes was Sandra Day O’Connor, whose replacement, Samuel Alito, voted against BCRA in the 2007 Wisconsin Right to Life case.
In 2004, Wisconsin Right To Life (“WRTL”) ran ads asking voters to contact both Wisconsin Senators to urge them to oppose filibusters of judicial nominees, but the ads ran within 30 days of a primary election which included Sen. Feingold, so WRTL was accused of violating BCRA’s prohibition on electioneering within 30 days of a primary. When the case reached the Supreme Court in 2007 as the first major as-applied challenged to BCRA, the Court, by a 5-4 vote, upheld a lower court’s decision that the organization’s issue ads were not “express advocacy,” and that BCRA was unconstitutional as applied to those ads.
However, in a concurrence which reads remarkably like an angry dissent, Justice Antonin Scalia, joined by Justices Kennedy and Thomas, seems to argue for wholesale dismemberment of BCRA. After arguing that stare decisis, i.e. adhering to precedent, “is not an inexorable command,” Scalia says, “It is perhaps our most important constitutional task to assure freedom of political speech. And when a statute creates a regime as unworkable and unconstitutional as today’s effort at as-applied review proves §203 to be, it is our responsibility to decline enforcement.”
Scalia also notes the unintended (but predictable) consequences of BCRA:
There is wondrous irony to be found in both the genesis and the consequences of BCRA. In the fact that the institutions it was designed to muzzle — unions and nearly all manner of corporations — for all the “corrosive and distorting effects” of their “immense aggregations of wealth,” were utterly impotent to prevent the passage of this legislation that forbids them to criticize candidates (including incumbents). In the fact that the effect of BCRA has been to concentrate more political power in the hands of the country’s wealthiest individuals and their so-called 527 organizations, unregulated by §203. (In the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142 million to 527s. …) And in the fact that while these wealthy individuals dominate political discourse, it is this small, grass-roots organization of Wisconsin Right to Life that is muzzled.
With some luck, the irony of McCain-Feingold is not lost on its Republican champion; personally I hope it contributed to his loss. As George Will said, “There is fitting irony in the fact that, if McCain’s campaign continues until the delegate selection process begins, he probably will have to accept federal matching funds and the absurd strings attached to them, stipulating the maximum amounts that can be spent in particular states. That would be condign punishment for the man who has dragged politics — the process by which the state is staffed and controlled — deep into the ambit of the regulatory state.”
I asked Duncan whether he thought the RNC was likely to prevail in these cases. His response: “The fact that we have six years of experience with this soft money ban, the fact that we can show our transparency and accountability, and the fact that really the lack of transparency and the potential for corruption is with third parties gives us a new set of circumstances to look at. So, yes, I believe we have a great opportunity here.” But he added that, given the Court’s interest on ruling “on an as-applied basis,” he doesn’t expect all of BCRA to be thrown out based on the current lawsuits.
Duncan denied that the timing of the lawsuits just after the election was in order not to appear to be challenging the GOP’s presidential nominee. Dennis Prager and others believe that McCain-Feingold disqualified John McCain from the presidency. So, regardless of the timing, I applaud the RNC for filing suit against the travesty that is BCRA.