WASHINGTON, June 5 (UPI) -- The U.S. Supreme Court said Thursday it would hear the appeal in the federal soft-money ban case during a special session in September.
The case will determine how political parties raise money for all federal elections in 2004, including the race for the White House.
Combining 11 challenges to the federal law, a special three-judge in May court struck down the core provisions of the 2002 Bipartisan Campaign Finance Act, or BCRA, while leaving some peripheral provisions intact.
The act essentially banned the use of unregulated money in federal campaigns.
By law, the Supreme Court must hear a direct appeal of the case from the trial court.
In an order following a conference at the Supreme Court Thursday, the justices noted "probable jurisdiction" in the case, which means they accepted the appeal.
They also followed the suggestion of U.S. Solicitor General Theodore Olson, who moved to set the briefing schedule in a filing last month.
Per Olson's suggestion, the challengers of the law in the lower court must file their briefs first, by July 8. Then the defendants in the lower court, including the Federal Election Commission, must file their briefs by Aug. 5.
Plaintiffs, or challengers, would then file reply briefs on Aug. 5, followed by an unusual four hours of argument on Sept. 8.
The manner in which the parties are being asked to file their briefs, or written arguments, suggests the Supreme Court is looking at the BCRA with fresh eyes, not simply reviewing what the lower court decided.
The special September session appears to make the case part of the current term of the Supreme Court. The justices normally take a summer recess from late June through late September, and officially begin their new term on the First Monday of October.
The three-judge trial court panel that originally ruled in the case temporarily stayed its own decision on May 19.
The Supreme Court was asked to hear the appeal by the Justice Department, acting for the FEC. The department told the lower court a stay was necessary because a change in campaign fundraising so close to the 2004 elections would be "tumultuous."
The government's request for a stay was opposed by a group led by Sen. Mitch McConnell, R-Ky., one of the challengers of the ban.
McConnell was joined by fellow challengers, the National Rifle Association, the Republican National Committee, the California Democratic and Republican parties and the American Civil Liberties Union.
Two members of the three-court panel, U.S. Circuit Judge Karen LeCraft Henderson and U.S. District Judge Colleen Kollar-Kotelly -- said they voted for the stay because of a "desire to prevent the litigants from facing potentially three different regulatory regimes" -- the one constructed by the Bipartisan Campaign Reform Act that contained the ban, the one constructed by the panel without the ban and a final one to be constructed by the Supreme Court -- "in a very short time span, and the court's recognition of the divisions among the panel about the constitutionality of the challenged provisions of the BCRA ..."
U.S. District Judge Richard Leon issued his own memorandum saying the court panel should not have stayed those peripheral provisions of the BCRA that were unanimously struck down.
The BCRA amends the 1971 Federal Election Campaign Act.
The new act tries to address two categories of fundraising: (1) "the acceptance and use by political parties of 'soft money' (i.e., money raised outside the framework of FECA's disclosure requirements and source and amount limits) for the purpose of influencing federal elections; and (2) the growing use of corporate and union treasury funds for communications designed to influence, and generally known to influence the outcome of federal elections."
Before the BCRA, unregulated "soft money" could only be used for "party-building activities" such as voter-registration drives, and supposedly could not be used directly in a campaign. "Hard money" was subject to FECA's source disclosure requirements and strict limits, but could be used directly in a campaign.
However, the line between the soft and hard money had become blurred.
"In recent years ... soft money contributions to political parties have increased dramatically," the government said in its appeal to the Supreme Court. "Soft money has been used (among other things) to purchase advertisements that have featured federal candidates but have not expressly advocated a particular electoral result."
Congress "concluded that the effect of such practices was to enable corporations, labor unions and wealthy individuals to make unlimited and unreported contributions to political parties that were in turn used to benefit federal candidates," the government's appeal said, citing a 1978 landmark decision, "thus reintroducing the 'opportunities for abuse inherent in a regime of large financial contributions.'"
The Supreme Court ruled in 1976's Buckley vs. Valeo that it was unconstitutional to restrict how much an individual candidate could spend. Presidential candidates are publicly funded in the United States, but agree not to spend more than the amount allocated as a condition of getting the money.
However, the court upheld some limitations on contributions as long as the limits are designed to combat corruption or the appearance of corruption.
The BCRA says the national parties or their committees "may not solicit, receive or direct to another person a contribution, donation or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions and reporting requirements" of FECA.
In other words, it banned soft money.
(No. 02-1674, McConnell et al vs. FEC et al etc)