THE NEXT ‘CITIZENS UNITED’ IS COMING

Jun 23, 2016 by

AP238971116006Jim Bopp, a conservative attorney, speaks in favor of a measure amending the state’s constitution to ban gay marriage during a hearing of the House Judiciary Committee at the Statehouse in Indianapolis, January 2014.

Michael Conroy/AP

Most Americans last heard from conservative lawyer James Bopp six years ago when he crafted a case, Citizens United v. Federal Election Commission, that won the Supreme Court’s favor and helped uncork a torrent of cash — some of it secret — that continues pouring into elections.

But Bopp is back. The Terre Haute, Indiana-based attorney, who was literally laughed at by a judge when he made his first arguments in Citizens United, is now the lead lawyer in the most prominent of a series of lawsuits attempting to further destroy political contribution limits. The case, brought by the Republican Party of Louisiana, addresses restrictions on how state and local political parties use “soft money” contributions to influence federal elections.

Bopp’s clients argue that if independent outside groups such as super PACs are permitted to raise and spend unlimited amounts of such money, there’s no reason why state political parties, acting independently of federal candidates, should be treated differently. Political parties are “disadvantaged” compared to super PACs, Bopp said in an interview with the Center for Public Integrity. “They want to compete, and they want to do this activity without the severe restrictions that they suffer under.”

Bopp says he won’t rest until there are as few election rules as possible since he believes that too many rules lead to more opportunities to game the political system. “When you say, ‘Congress shall make no law,’ I know that’s kind of a shocking statement, but it’s a pretty definitive statement,” he said, referring to the First Amendment and its application to political speech. “There shouldn’t be any laws as opposed to thousands of pages of laws and regulations that you have now in the federal system.”

The stakes are high. If the Republican Party of Louisiana wins the case, “in effect, the ‘soft money’ world of the late ‘90s and 2002 would be reestablished,” purging some of the last remnants of McCain-Feingold and other restraints on donations, said Richard Briffault, a professor at Columbia Law School and expert on election law.

Tara Malloy, deputy executive director of the Campaign Legal Center, which favors campaign contribution limits, compares the deregulatory approach of those like Bopp who are fighting against limits to peeling an onion.

“First it was the aggregate limits, which was sort of like the outermost protection. Now they’re going for the party limits, which again seems one degree removed from a direct contribution for the candidate,” she said. “I assume if they were successful here, they would go for the rest.

Multiple campaign finance lawyers point to the Louisiana case as one of the most likely of a small number of campaign finance cases now wending their way through the legal system to reach the U.S. Supreme Court, and several others may land there as well.

These still-obscure challenges to remaining campaign finance laws have the potential to again reshape the way money influences politics. They could further erode contribution limits or chip away at state laws aimed at restricting money’s influence on state-level elections.

To be sure, there are many variables that will shape the outcomes. And lawyers on all sides of these cases agree U.S. Supreme Court rulings are notoriously tricky to forecast, especially with the court down to eight members following the death of Justice Antonin Scalia earlier this year.

Nevertheless, those in favor of more deregulation of campaign finance, like Bopp, are looking to extend the reasoning laid out in decisions such as Citizens United and 2014’s McCutcheon v. FEC, which overturned aggregate campaign finance limits.

The practical effect of the U.S. Supreme Court siding with the Louisiana state Republican Party would be reopening the door to what was known in the 1990s as “soft money,” allowing what in many states would be practically unlimited contributions to state parties.

The case would “substantially” reduce the difference between the amounts of money independent groups such as super PACs could accept and the amounts state parties could accept, Bopp said.

Two other cases could also be big, if they don’t first fizzle out: a federal district court ruling striking down Montana’s contribution limits, also a Bopp case, and a messy, politicized case out of Wisconsin that raises questions about coordination between candidates and independent groups, among other legal issues.

There’s also a case seeking to overturn a Delaware law that requires groups spending more than $500 per election cycle on ads referring to specific candidates to disclose their donors.

Parties in both the Wisconsin and Delaware cases have filed certiorari petitions asking the Supreme Court to take the cases. The Supreme Court has not yet ruled.

The ‘Citizens United’ decision and why it matters

By John Dunbar

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