Republican Party of Louisiana et al. v. FEC (New)

On August 3, 2015, the Republican Party of Louisiana (LAGOP), the Jefferson Parish Republican Parish Executive Committee and the Orleans Parish Republican Executive Committee (collectively, plaintiffs) filed suit in the U.S. District Court for the District of Columbia challenging the constitutionality of portions of the Federal Election Campaign Act (the Act or FECA) that specify how state and local parties must finance and disclose certain "federal election activity" that they plan to engage in, including fundraising costs for such activity. They argue that the provisions are unconstitutional under the First Amendment because they burden the plaintiffs' "core political speech and association" and that there is no sufficiently "cognizable" governmental interest justifying the challenged provisions.

Background
State and local political parties may each establish federal and nonfederal accounts for the purpose of conducting activities in connection with federal and nonfederal elections. Funds raised in connection with federal elections, including for "federal election activity," are subject to the limitations and prohibitions of the Act (federal funds), while funds that are raised for nonfederal elections are generally regulated by state law (nonfederal funds). 52 U.S.C. §§ 30125(b)(1), (c). State and local political parties that establish both federal and nonfederal accounts may allocate the costs of certain activities, such as administrative costs (i.e., rent, utilities, etc.). See 11 CFR 102.5 and 106.7.

Congress has identified certain "federal election activity" (FEA) that state, district and local political parties must finance using federal funds (or at least a minimum percentage of federal funds). 52 U.S.C. § 30125(b)(1). FEA includes activities such as get-out-the-vote activity, voter identification, generic campaign activity,¹ and voter registration activity conducted within a specific time period prior to a federal election. 52 U.S.C. § 30101(20). FEA also includes public communications that promote, attack, support, or oppose (PASO) any clearly identified federal candidate when made at any time, and the salaries and wages of state and local party employees who spend more than 25 percent of their compensated time on a federal election during any given month. See 52 U.S.C. § 30101(20). Voter registration activity, get-out-the-vote activity, voter identification or generic campaign activity that qualifies as FEA is required to be paid for either exclusively with federal funds or with an allocation of federal and "Levin funds." 52 U.S.C. § 30125(b).

If a particular activity conducted by a state, district or local party committee in connection with both federal and nonfederal elections does not qualify as FEA (such as voter registration held more than 120 days before a regularly scheduled federal election), Commission regulations permit that activity to be paid for with an allocation of federal and nonfederal funds. 11 CFR 106.7(b). However, state, district and local parties must make disbursements for FEA from a federal account. 11 CFR 300.30(c). The Act further requires state, district and local party committees that engage in FEA to file monthly disclosure reports with the Commission. 52 U.S.C. § 30104(e)(2).

The plaintiffs wish to make "non-individualized, independent communications" exhorting voter registration and voting; some of these communications will qualify as FEA because they will be made during the relevant FEA time frames prior to federal elections in 2016 in Louisiana. Plaintiffs' proposed activities include creating a website to assist potential voters in registering to vote and disseminating various email messages and broadcasts, with some, for example, urging recipients to register to vote or to vote for Republican candidates. The plaintiffs maintain that, based on Louisiana's schedule of elections in 2016, these activities will become FEA in the fall of 2015 and thus require the parties to finance these activities using funds raised in accordance with the Act's limitations. See 52 U.S.C. § 30116.

The plaintiffs also wish to undertake other activities such as voter identification, generic campaign activity, and communications that may PASO federal candidates; the plaintiffs maintain that some of these activities will qualify as FEA based on the timing, medium and content of the communications. To pay for such communications, plaintiff LAGOP wishes to establish an "independent communications-only account" (ICA) which could receive funds without being restricted by FECA's contribution limits. Plaintiffs do not intend to comply with each of the limitations on allocated payments with "Levin funds."

Court Challenge
The plaintiffs challenge the Act's provision that requires state and local political parties to pay for particular kinds of FEA — such as "independent, non-individualized communications that exhort registering/voting" — with funds raised in accordance with the Act's source and amount restrictions as unconstitutional under the First Amendment as applied to these proposed activities. They also challenge the Act's provisions requiring that fundraising costs for such types of FEA be raised pursuant to FECA's source and amount restrictions and that they be reported. They allege that these requirements substantially burden their core political speech and association rights and that there is no "cognizable" governmental interest to justify the restrictions. The plaintiffs argue that these "independent, non-individualized communications" pose no risk of quid-pro-quo corruption or its appearance.

Similarly, plaintiff LAGOP contends that its proposed ICA-funded communications pose no risk of quid-pro-quo corruption or its appearance. This ICA, plaintiffs maintain, would be "constitutionally similar to the non-contribution accounts of nonconnected committees," which such committees may use to pay for independent expenditures with funds raised in excess of FECA's contribution limits.

The plaintiffs further argue that provisions of the Act that require FEA to be paid for with funds raised in accordance with the Act's source and amount restrictions, including fundraising costs for such activity, and FECA's requirement that such FEA be reported are all unconstitutional facially and as applied to all "independent FEA." They contend that the Supreme Court has required evidence of quid-pro-quo corruption (or its appearance) to uphold such restrictions and that there has been no proven instance of any such corruption that supports a "cognizable" governmental interest in justifying the restrictions at issue here. See McConnell v. FEC.

The plaintiffs have requested that a three-judge panel be convened to consider this litigation.

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¹ "Generic campaign activity" means a campaign activity that promotes a political party and does not promote a candidate or nonfederal candidate. 52 U.S.C. § 30101(21).

Resources:

• Republican Party of Louisiana et al. v. FEC litigation page