Has the FEC Successfully “Whacked a Mole”?

Tara Malloy
Jun 24, 2016
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With No Actual Injury, the Louisiana Republicans May Be Knocked Out of Court

As is not infrequently the case in “test” litigation everywhere, it appears that the plaintiffs in Republican Party of Louisiana v. FEC may not be as injured as they claim to be. 

In the case, today before a three-judge court of the U.S. District Court for the District of Columbia, the Louisiana State Republican Party and its local affiliates are challenging a $10,000 contribution limit in the McCain-Feingold Act applicable to their federal election activities. Their inability to accept more than this amount from wealthy individuals, they claim, violates their First Amendment rights and burdens their activities and finances. But discovery in the case conducted by the Federal Election Commission (FEC) has revealed that the Louisiana Republican Party was never actually offered any contributions that exceeded the $10,000 limit that they now allege is devastating their fundraising efforts.

The plaintiffs responded to the FEC’s charges not by contesting these facts, but instead by changing their case: now the party committees claim they need to raise and spend unlimited corporate and union money to fully vindicate their First Amendment rights. The FEC countered that the GOP’s endlessly changing case was “akin to a game of jurisdictional Whac-A-Mole.” 

Consequently, in addition to hearing the GOP’s substantive claims in oral argument today, the presiding three-judge court will also consider whether the plaintiffs even have standing to bring their case in the first place. The FEC may or may not succeed in knocking this case out of court. But these latest maneuvers confirm that the GOP is manufacturing a “First Amendment” injury to sustain a lawsuit, instead of bringing a lawsuit to address an actual injury. 

This is all too common in the campaign finance sphere — where the legal challenges themselves sometimes appear to be less about real-life campaigns and more about hotly contested differences in constitutional theory. Rather than seeking to vindicate an actual injury, plaintiffs are usually little more than placeholders in a broader ideological battle to slowly, incrementally deregulate campaign finance and ethics law.  

The GOP plaintiffs get a three-judge court…

The Louisiana State Republican Party and its two local counterparts in Orleans and Jefferson Parishes are challenging a key provision enacted as part of the 2002 McCain-Feingold law that requires state and local parties to abide by a $10,000 limit when financing “federal election activities,” subject to certain exceptions. 

The rationale behind the provision is that without this check, state parties could undermine federal contribution restrictions by accepting unlimited “soft money” donations and pumping them into activities guaranteed to impact federal elections, such as get-out-the-vote (GOTV) before elections with federal candidates on the ballot, or ads that promote or attack a federal candidate.  Based on these concerns, these “soft money” limits were upheld on their face by the Supreme Court in 2003 (McConnell v. FEC) and again in 2010 against an as-applied challenge (RNC v. FEC). The Campaign Legal Center, with Public Citizen and Democracy 21, filed a friend-of-the-court brief highlighting these cases and opposing the Louisiana Republican Party’s challenge.

Given these past precedents, it would appear that the Louisiana GOP plaintiffs have an uphill climb.  Their first task was to convince a judge that their claims, although twice rejected, nevertheless warranted a three-judge court with direct appeal to the Supreme Court. The McCain-Feingold Act provides for this special review mechanism only for challenges to its provisions that are not frivolous or foreclosed by clear precedent. 

Unfortunately, the Judge Christopher Cooper granted the GOP’s request (albeit reluctantly).  The thrust of plaintiffs’ case is that the First Amendment forbids limits on contributions used by state and local political parties for federal election activities if such activities are conducted independently of federal candidates. Judge Cooper feared that the Supreme Court’s recent decision in McCutcheon v. FEC had sufficiently muddied the waters with respect to the constitutionality of contribution limits as to allow plaintiffs to clear the very low bar of “non-frivolous.” So plaintiffs won review by a three-judge court.

Only to lose it again?

Judge Cooper, however, has made no determination following discovery about whether the challenged limit in fact has caused the state or local GOP parties harm in light of their past fundraising or expectations for fundraising in the future. Pleading an injury in fact is necessary to establish standing, which in turn is necessary for a plaintiff to sue in the first place. 

Through discovery, the FEC learned that the state party was “unaware of any individual contributor wishing to give it more than $10,000.” And the local party committees had not received any contributions in years, save a $1 contribution to the Jefferson County GOP at the end of 2015, which one imagines can be squeezed under the $10,000 limit somehow. According to a local GOP representative: the party’s fundraising efforts had “failed miserably.”

The local committees do have income in the form of “filing fees” paid by candidates for ballot access, but their representatives, in sworn statements, disavowed any wish to use the fees to promote federal candidates, and in any event, federal campaign finance law would not necessarily prevent them from doing so. The takeaway from discovery is that the plaintiffs have suffered no actual injury in the past, nor are they likely to suffer any injury in the future; consequently, they have no standing to bring the case in any court.

The Republican Party plaintiffs nevertheless counter that they do have standing because the law still creates a “chill” on their “independent, expressive activities,” even though any “chill” on these activities thus far has been due to their lack of fundraising prowess, not the $10,000 limit. Otherwise put, the allegation that the law is “chilling” is more wishful thinking than constitutional injury. Can the limit constitute a burden if no one has the desire or means to exceed it?

If this all sounds untenable, that is because it is. So the Republican Party plaintiffs also do an about-face and claim that they now want to raise corporate and union funds. But here they run into more trouble:  the underlying ban on corporate and union contributions is a provision of the Federal Election Campaign Act, not McCain-Feingold, and thus the procedural avenue of a three-judge court is not available for its review. Or, in a nutshell, if these new and improved claims indeed comprise the plaintiffs’ case, then they will be kicked out of the three-judge court regardless.

The trajectory of this case will no doubt become clearer after oral argument this Friday. We will see whether the Louisiana GOP manages to shore up its standing, or whether opponents of reform will have to gin up a new test case in their attempt to tear down the remaining checks on money in politics.

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