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U.S. Supreme Court: Wallowin' again in that ol' soft money

WAP2000121108 - 11 DECEMBER 2000 - WASHINGTON, DC, USA: Ted Olson, attorney for George W. Bush in the election dispute, talks with reporters in front of the Supreme Court building in Washington, DC, on December 11, 2000, after the hearing which will determine if votes will be recounted in Florida. rlw/Roger L. Wollenberg UPI
WAP2000121108 - 11 DECEMBER 2000 - WASHINGTON, DC, USA: Ted Olson, attorney for George W. Bush in the election dispute, talks with reporters in front of the Supreme Court building in Washington, DC, on December 11, 2000, after the hearing which will determine if votes will be recounted in Florida. rlw/Roger L. Wollenberg UPI | License Photo

WASHINGTON, April 4 (UPI) -- Remember "soft money," the shadowy torrents of unregulated cash supposedly designated for "party building" or other such nebulous activities that caused such political heartburn in the 1990s?

The ban on soft money was one of the few provisions of the McCain-Feingold Act to survive challenge in the courts.

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Now the Republican National Committee is making a major new legal effort to remove the ban. It intends to take its challenge to the U.S. Supreme Court.

Soft money used to be an equal opportunity issue for Democrats and Republicans back in the 1990s, and a prime culprit in the obscene amount of money being spent on campaigns. In 1997, President Bill Clinton conceded soft money had fueled a blitz of Democratic party advertising, but argued Republicans had abused it more. The "abuse" was that both parties had used soft money, as opposed to "hard money," indirectly or directly to influence specific elections.

Soft money theoretically was unreported to any federal agency, and could only be used for party activities such as get-out-the-vote or registration drives linked to "party building."

The Bipartisan Campaign Reform Act of 2002, called the McCain-Feingold Act, amended the Federal Election Campaign Act. The amendment among other things prohibited the Democratic National Committee and Republican National Committee -- or any national party committee, though those two were most directly affected -- from getting or spending soft money contributions.

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The Supreme Court upheld most of the act in 2003's McConnell vs. FEC, but the law was gutted by the Supreme Court in 2007's FEC vs. Wisconsin Right to Life. However, the soft money ban survived.

The latest challenge to the soft money ban is pretty much an all-Republican effort.

The soft money ban received a major boost last month in the U.S. Court of Appeals for the District of Columbia Circuit, the federal appeals court in Washington sometimes called the second most powerful court in the United States. The appeals court upheld the ban, but the setback for the RNC was strictly temporary.

The path to the RNC's new challenge to the soft money ban apparently was carefully planned.

The proposed challenge was part of a legal presentation to the RNC, Politico reported. The Supreme Court upheld the soft money ban in a "facial" challenge -- the ban allegedly was unconstitutional on the face of it. But the new RNC challenge would be "as applied" -- a challenge based on how the ban was being applied.

Politico reported the presentation said the RNC expected to ask for immediate expedited review in the Supreme Court if it lost on the lower level.

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In fact, the RNC did lose its challenge in the Washington appeals court last month. The appeals court said it had a simple reason for ruling against the RNC: The challengers wanted the appeals court to do something the Supreme Court had yet to do.

In its opinion, the U.S. appeals court panel noted the 2003 Supreme Court decision had upheld the ban on "soft money."

"The Bipartisan Campaign Reform Act of 2002, known as BCRA, limits contributions to national, state, and local political parties," the opinion said. "With respect to national political parties, BCRA's limits apply regardless of how a national party might want to use the money -- for example, even if the party wishes to use the money to fund issue ads or state and local election activities. BCRA's limits on contributions to political parties are known as the soft-money bans."

In 2003, "the Supreme Court upheld those provisions against a facial First Amendment challenge." In the current case, "the Republican National Committee, the California Republican Party, the Republican Party of San Diego County and the RNC chairman bring a number of as-applied challenges to BCRA's restrictions on political-party fundraising. We conclude that plaintiffs' claims conflict with the Supreme Court's decision in McConnell."

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The appeals court said the the Supreme Court's recent decision lifting restrictions on corporate and union contributions "did not disturb McConnell's holding with respect to the constitutionality of BCRA's limits on contributions to political parties."

The appeals court said it did not have the authority to redefine the BCRA in conflict with the Supreme Court's interpretation.

The appeals court panel did offer the RNC challengers a legal crumb, Legal Times reported. The panel noted the Supreme Court's ruling in Citizens United vs. FEC -- basically taking the handcuffs off corporate and union spending in campaigns and eliminating limits on that spending -- created a "disparity."

After Citizens United, the panel said in a footnote, current law allows "outside groups -- unlike candidates and political parties -- to receive unlimited donations both to advocate in favor of federal candidates and to sponsor issue ads. We recognize the RNC's concern about this disparity, which, it argues, discriminates against the national political parties in political and legislative debates. But that is an argument for the Supreme Court or Congress."

Earlier, the RNC had hired a big gun to take the case to the Supreme Court -- Ted Olson.

If not for being linked to the so-called Arkansas Project attacking then-President Clinton, Olson would have been a logical choice to ascend to the Supreme Court in President George W. Bush's administration.

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Still, Olson is an outstanding appeals court litigator -- he represented Bush before the Supreme Court in 2000's Bush vs. Gore -- and was named by Bush as U.S. solicitor general.

Olson said the appeals court ruling "leaves special-interest groups and labor unions with more power to influence our elections than political parties. ... We will demonstrate to the Supreme Court that the First Amendment does not tolerate that result," Fox News reported.

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