Campaign finance warrior James Bopp, who has been involved in numerous fights to protect First Amendment rights to engage in political speech and political activity, is the lead lawyer in two new lawsuits filed against the McCain-Feingold law – the Bipartisan Campaign Reform Act of 2002 (“BCRA”). Bopp won a significant victory last year in FEC v. Wisconsin Right to Life, 127 S.Ct. 2652 (2007), when he convinced the Supreme Court to declare that sections of BCRA were unconstitutional as applied where they prohibited a pro-life organization from running issues ads concerning the filibustering of judicial nominees within 30 days of a primary election and sixty days of a general election.
In the latest lawsuits, Bopp is representing the Republican National Committee as well as the California and Louisiana state party committees. The RNC is challenging the ban on national political parties raising and spending money for state elections and state candidates that are outside of the federal limits and restrictions of BCRA, as well as the limits on how much money national political parties can spend helping their candidates when those funds are “coordinated” with the candidates.
In RNC and California Republican Party v. FEC, Bopp is arguing that 2 U.S.C. §441i’s prohibitions on soliciting, receiving and spending funds not subject to the limitations of BCRA are unconstitutional when applied to the party’s plans to raise and spend money on state candidates in elections in 2009 in New Jersey and Virginia, when there will be no federal candidates on the ballots. He is also calling into question their application to RNC plans to raise and spend money on redistricting after the 2010 Census, on grassroots lobbying on issues and legislation important to the Republican Party’s platform, and on paying for the litigation itself. The key to all of these challenges is that none of these activities are “unambiguously related to the campaign of a particular federal candidate.” Thus, they are beyond the power of Congress to regulate federal elections and are a violation of the First Amendment guarantees of free speech and association.
In Joseph Cao, RNC, and Republican Party of Louisiana v. FEC, Bopp is arguing that the limits in 2 U.S.C. §441a on coordinated spending between a candidate and his political party are unconstitutional when applied to the RNC because they severely limit the ability of political parties to work with and support their candidates. Cao is the Republican candidate scheduled to compete in the December 6 general election against the winner of the Democratic Party runoff election between Congressman William Jefferson and former TV anchor Helena Moreno. The RNC has already spent the maximum $42,100 allowed in Louisiana on helping Cao in his election, and claims that such a limit is unconstitutional when applied to issue advocacy, grassroots lobbying, general public communications, and non-targeted voter registration and get-out-the-vote activity. Because these activities are also not “unambiguously campaign related,” they are a violation of the party’s associational rights.
Both of these lawsuits challenge some of the most questionable provisions of BCRA. It is the restrictions on so-called “soft money” fundraising that have weakened the parties and led to the huge growth in 527 organizations. The restrictions on the ability of political parties to participate in state elections have always been a severe over-extension of federal law into state activities. As long as national parties are abiding by state campaign finance laws in state elections, it is frankly no business of the federal government, the FEC or Congress how they raise and spend that money. And the restrictions on the ability of political parties to support their own candidates has always seemed a particularly misguided provision to me – helping their candidates is the very essence of the political party system that we have and it is something we should encourage, not discourage as the BCRA statute does.
Whether you are a Republican, a Democrat, a Libertarian or a Green Party-er, we should all wish James Bopp good luck and good hunting in these suits. If he is successful, then we will have had some of our First Amendment rights that were stolen by BCRA restored to us.