Yesterday's posting noted the alliance of Jim Bopp and the institutional Republican Party in bringing down McCain-Feingold.  The lawyer who has made a name and a cause of challenging this law finds a new client with a fresh interest in his work.  The RNC wants access to lucrative sources of money that the law as now written prohibits it from reaching, and Bopp has had the success for independent groups, in suing for new and unrestricted funding alternatives, that the party now demands for itself.  The papers Bopp has filed for the RNC shows how the lawyer intends to build on prior victories for the groups to win this one for his new client, the party.  They show, too, that this may not be one of Jim's easier days in the courtroom.

     Bopp everywhere argues the language from Buckley that Congress' regulatory authority extends only to activities that are "unambiguously related to the campaign of a particular federal candidate."  Buckley, 464 U.S. at 80, cited at p. 3, ¶¶ 5-8, of the RNC Complaint.  He works this language up into the status of High Doctrine running through precedent from McConnell through WRTL II, to lower and appellate court cases.  He suggests that this is the end of the inquiry, and that the inquiry is simple, almost self-evidently so.

     In fact, the language he so heavily depends on marks only the beginning of the inquiry.  The cases he cites are not all of a kind:  they range over third party groups, Bopp's specialty, defined by their "independence" from candidates, and political parties that the courts have found to be the candidate's agents and alter egos.  The extent of the relationship of entity to candidate, varying by type of entity, is what has shaped current doctrine. 

     Where Buckley employed the "unambiguous relationship" language cited by Bopp, the Court was analyzing the reporting requirement that applies to spending for federal election-related purposes other than by contributions to a candidate or political committee.  The distance from the candidate or committee was the issue: the Court gauges just that distance in stating that "when the maker of the expenditure...  Is an individual other than a candidate or a group other than a 'political committee'—the relation of the information sought to the purposes of the Act may be too remote."  Id.  Parties are political committees, of course, and the Court has held that they are not just any political committees: they are, in the words of McConnell, "willing intermediaries" between candidates and donors, in this way and other others "close ties" with the candidates.  McConnell, 540 U.S. at 146-152. 

     Bopp's Complaint elbows this distinction out of the way, and then attempts to join parties and groups in a similar constitutional destiny by linking up Buckley, McConnell and WRTL II on  the question of what constitutes an "unambiguous relationship" to a candidate.  For Buckley, the issue was distance, and McConnell found little such distance between candidates and parties, but WRTL, a "group" case, took up the issue of "ambiguity" not in assessing the nature of an organizations and its relationship to candidates, but as a quality of its speech.  The Court had in mind "independent" speech—independent from candidates—as it made clear from the beginning, WRTL II, 127 S.Ct. at 2659 ("Prior to BCRA, corporations were free under federal law to use independent expenditures to en gage in political speech so long as that speech did not expressly advocate the election or defeat of a clearly identified federal candidate.")  The question was whether independent speech could be constitutionally brought within BCRA's advertising restrictions if it was ambiguous in content, "susceptible of" a "reasonable interpretation other than as an appeal to vote for or against a specific candidate."  Id. at 2667

     The Court resolved the ambiguities in favor allowing the speech.  It did not give any ground for believing that for these purposes groups and parties were to be treated the same.  McConnell contradicts any such belief.  Ambiguity of relationship to candidates is one concern, and ambiguity of speech, in the determination of "express advocacy," is another, and this large difference is one that Bopp plainly hopes to confuse or, in a new doctrinal phase, eliminate.

     Not all students of campaign finance are impressed with the Court's labors in this field, and some—this one included—have major quarrels with McConnell, judging it a particularly weak performance.  Exception has regularly been taken, also in this space, to the treatment of parties, with concern expressed about the danger that they will lose ground to "groups" under the peculiar combinations of incentives and disincentives established by recent reforms affirmed in major part by the Court.  Yet the Court has established distinctions in clear terms between the world of the groups and the world of parties, and Bopp, now representing the national Republican party, is working to paper them over.

     This could be the fatal problem with Bopp's strategy.  He has chosen not to argue that the Court may have gone too far in McConnell and that it should now, in the light of experience, correct its course. He is instead making a claim about what the constitutional law is, and he is wrong.

 
Bob Bauer