Updated at 4:37 p.m.
A three-judge panel in Washington ruled today that the Federal Election Commission can enforce a federal ban on so-called “soft money” contributions to political parties, in a case that’s being closely watched because of its potential to reach the Supreme Court.
The decision is one of two important campaign-finance rulings today. In the other, a case involving SpeechNow.org, the U.S. Court of Appeals for the D.C. Circuit ruled unanimously en banc that the federal government cannot limit donations to independent political groups.
The soft-money case was heard by a special three-judge panel, under a provision in the 2002 McCain-Feingold campaign-finance law that allows for expedited review of constitutional challenges to that law. The panel consisted of Judge Brett Kavanaugh of the D.C. Circuit and U.S. District Court Judges Rosemary Collyer and Richard Leon of the District of Columbia
The panel’s decision turns aside a challenge to the law from the Republican National Committee and local GOP affiliates, who want to be able to solicit unlimited donations from individuals.
In a 20-page opinion, the panel did not attempt to sort out completely the First Amendment questions in the case. Instead, the judges ruled unanimously that they were bound by the Supreme Court’s 2002 ruling in McConnell v. FEC, in which the Court upheld Congress’ attempt to restrict large donations from individuals to parties.
“As a lower court, we do not possess the authority to clarify or refine McConnell in the manner suggested by plaintiffs,” the judges wrote in granting summary judgment to the FEC.
But, in their analysis, the judges did note a new “disparity” as a result of the Supreme Court’s recent ruling in Citizens United v. FEC striking down limits on what outside groups can spend in a campaign.
“Under current law,” the panel wrote in a footnote, “outside groups — unlike candidates and political parties — may receive unlimited donations both to advocate in favor of federal candidates and to sponsor issue ads. We recognize the RNC’s concern about this disparity, which, it argues, discriminates against the national political parties in political and legislative debates. But that is an argument for the Supreme Court or Congress.”
James Bopp Jr., who represents the RNC and other plaintiffs, said he was heartened by the panel’s analysis. Bopp said he is anticipating an appeal, but that his clients have not made a final decision. “I would say that the case is set up very favorably for review by the U.S. Supreme Court,” said Bopp, a name partner in Indiana’s Bopp, Coleson & Bostrom.
The McCain-Feingold law requires the Supreme Court "to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal."
An FEC spokeswoman said the commission was still studying the opinion.
UPDATE (1:36 p.m.): Marc Elias, who represented the Democratic National Committee in siding with the FEC, said today’s two campaign-finance rulings reaffirm existing precedent “in a straightforward fashion.”
“SpeechNow basically says: We are bound by and will follow the Supreme Court decision in Citizens United. And the RNC decision basically says: We are bound by and will follow the Supreme Court decision in McConnell,” said Elias, chair of the political law practice at Perkins Coie.