Court Send Libertarian and Republican Campaign Finance Cases to All the Judges of the U.S. Court of Appeals, D.C. Circuit

On August 19, U.S. District Court Judge Christopher Cooper, an Obama appointee, issued a procedural ruling in Rufer v Federal Election Commission, and Republican National Committee v FEC. He sent both cases to the entire panel of full-time judges in the U.S. Court of Appeals, D.C. Circuit.

The issue in the two cases, which are separate cases on the same subject, is whether it is constitutional to limit individual expenditures to political parties if the parties will be spending the money on independent expenditures. Individuals can now give as much money as they wish to other groups that make independent expenditures; only political parties are barred from receiving unlimited donations for the purpose of making independent expenditures.

The U.S. District Court had three choices: (1) to dismiss the cases on the grounds that they are not substantial cases; (2) to send both cases to a 3-judge U.S. District Court; (3) to send the cases to the entire panel of full-time judges in the U.S. Court of Appeals, D.C. Circuit. The reason for this is that the 1976 campaign finance law, controlling how much money individuals can donate to candidates, is written to say that constitutional challenges to it must go to all the judges of the D.C. Circuit. By contrast, the 2002 campaign finance law, the McCain-Feingold law, which limits donations to political parties, says challenges to that law must be sent to a 3-judge U.S. District Court. Judge Cooper had to sift through these alternate approaches to decide which one applies. He chose the former. The attorneys in the Republican Party case had not even suggested the alternative that Judge Cooper chose, but the attorneys in the Libertarian Party case had suggested it.

This will be the first time since 1975 that any minor party or independent candidate has had a case before all the judges of the D.C. Circuit. The Libertarian Party has another case, Libertarian National Committee v FEC, over bequests, and the party has been waiting since April to learn if the bequest case will also go to the full D.C. circuit. Thanks to Rick Hasen for the link.

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