The government’s top lawyer in Supreme Court cases decided Thursday not to ask the Justices to revive a federal law that restricted the amount of money that independent political advocacy groups can raise for their efforts to influence the election of members of Congress and the presidency. The decision against seeking review, by Acting U.S. Solicitor General Neal K. Katyal, leaves intact the D.C. Circuit Court’s unanimous en banc ruling that struck down a ceiling on contributions to political groups operating independently of candidates and political parties. The case is SpeechNow.org v. Federal Election Commission.
Katyal’s decision was unexpected, since the Justice Department rarely declines to come to the defense of the constitutionality of a federal law that has been nullified by a lower court. Even so, the prospect of persuading the Supreme Court to overturn the Circuit Court ruling was not a bright one. The Circuit Court had said that the result was virtually dictated by the Supreme Court’s controversial ruling last January, in Citizens United v. FEC.
While the Citizens United decision dealt with the spending side of federal campaign finance, the SpeechNow case was on the other side — raising funds. Thus, as a result of the two decisions put together, independent advocacy groups can raise as much and spend as much as they can and wish to do to support or oppose candidates for federal office. The SpeechNow case was an unusual one in the sense that it treated fund-raising as just as fully protected as spending on campaigns, even though the Supreme Court in past rulings going back to 1976 has drawn a constitutional distinction between those two ends of the election money cycle, giving more protection to spending as a form of “political speech” than to contributions.
The major political parties have lately complained that court decisions liberating the campaign finance activities of independent groups have come at the expense of the traditional parties. The Republican National Committee is pursuing exactly that argument in a case that the Justices are scheduled to consider at their private Conference on June 24 — Republican National Committee, et al., v. FEC (09-1287). That case involves a federal ban on raising and spending so-called “soft money,” when parties do that for campaign-related activity not directly supporting or opposing candidates. (“Soft money” involves contributions raised outside ceilings set by federal campaign finance law.)
(NOTE: A reader of the blog notes that, under federal law, a decision by the Justice Department to refrain from defending a court ruling “adversely affecting the constitutionality” of a federal law must be followed up within 30 days with a report to Congress by the Attorney General.  Such a report must give Congress “a complete and detailed statement of the reasons” why the law’s constitutionality will not be defended. Thanks for the alert to this provision, which is codified at 28 U.S.C. 530d.)
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