First libertarian party committees, then the Republican National Committee, filed a suit last week to claim for political parties the advantages enjoyed by Super PACs. Each wishes to raise unlimited individual funds for “independent expenditures.”  The cases are a predictable consequence of v. FEC: these party committees are arguing that what is good for the outside groups should be good for them, so long as they are also spending independently of their candidates.

Lying ahead is stormy argument over whether the plaintiffs here should win or lose, and  the effects of victory or defeat on campaign finance. But there will come first a fair degree of disagreement about the nature of the issue before the Court—about what the case is about, what it means.

Begin with the New York Times account that suggested, along with its headline, that the suit is about opening a “loophole” in the campaign finance laws.  Whether one agrees or disagrees with the suit, it has nothing to do with any “loophole,” which is defined by Black’s Law Dictionary as:

Without violating its literal interpretation, an allowed legal interpretation or practice unintentionally ambiguous due to a textual exception, omission, or technical defect, evades or frustrates the intent of a contract, law, or rule.

Or, according to Oxford:

An ambiguity or inadequacy in the law or a set of rules.

The plaintiffs are not asking the courts to bless a loophole, because they are not exploiting a lack of clarity or textual defect in the law. The statute sets out in unambiguous terms the party contribution limits but, as the plaintiffs read Supreme Court precedent, those limits are unconstitutional as applied to the funding of independent expenditure activity.  Should these party organizations win, they will not have created a loophole: they will have vindicated their claim to a constitutional right.

Now to Democracy 21, which insists that the RNC has twice lost this case and that nothing has changed to give them hope the third time around.  Wrong again.  It is true that the RNC has filed before to weaken McConnell v. FEC and therefore McCain-Feingold in establishing access to soft money, corporate funds included, for various activities.  See RNC v. FEC, 698 F. Supp. 2d 150 (2010). But this latest action comes in the wake of new Supreme Court case authority, and the RNC is not contesting (for the moment) the ban on corporate or union spending—only the limits on individual contributions used for independent expenditures.  This is a hard money, not a soft money, case.

That is a third misconception that we will hear in the coming days: that the RNC and the Libertarian committees are suing to expand or revive the use of “soft money.”  This is not accurate: once the Court has found that federal law unconstitutionally restricts a source of campaign funding, the money is no longer “soft money” as the term has been used and understood.  It is not spent to evade lawful limits because the limits are not lawful; it cannot present a fresh threat of corruption because the Court long ago concluded that independently spent funds posed no such threat.  And it does not do to say that soft money is simply money spent outside the law’s source prohibitions and contribution limitations, for the prohibitions and limitations are no longer “the law.”

And finally, there is a suggestion that this case may draw its inspiration—and its hope– from the narrowed definition of corruption the Roberts Court has adopted. Rick Hasen seems to think this may be the case—that if mere ingratiation or access is not sufficient to justify government regulation, and if the test is a straight exchange of cash for legislative favor, the prospects improve for victory in suits like these. But in these cases, it should not matter that the Court has shifted to (or chosen to emphasize) the more demanding quid pro quo standard.  Under the Buckley analysis, the independence of an expenditure robs spending of its corrupting potential, because if the candidate did not request or shape the expenditure, she might be unhappy with it. The theory holds that an organization cannot buy votes, access or goodwill—any benefit at all that the law might recognize—by spending that candidates neither want nor find helpful to their campaigns. The looser standard tailored to access or influence may make a difference in cases not involving independence—say, in McCutcheon—but not in lawsuits about independent expenditures made with individual funds.

The fighting about to break out about these cases is starting off with heavy “messaging” about intentions, effects, and implications. The plaintiffs’ position is straightforward enough, however: already possessing the right to make independent expenditures, the parties should be able to raise funds for this purpose like any other committee making this kind of expenditure—like Super PACs. To them, the case is all about Buckley.  Their critics see only a further unraveling of the law: they see not Buckley, just Bopp.

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