Bopp Urges Supreme Court to Permit Political Contributions by Citizen Groups

By Richard E. Coleson, J.D.

On March 25, NRLC General Counsel James Bopp, Jr., urged the U.S. Supreme Court to recognize a constitutional right for citizen groups such as NRLC and its affiliates to make direct contributions to federal candidates. The case, FEC v. Beaumont, originated on January 3, 2000, when North Carolina Right to Life (NCRL) and associated individuals sued the Federal Election Commission, challenging certain FEC regulations and a statute that prohibits corporate contributions to candidates.

In response the federal district court, followed by the U.S. Court of Appeals for the Fourth Circuit, struck down both the FEC regulations and the statute. Building on a 1986 Supreme Court decision, the Fourth Circuit held that a ban on corporate contributions to federal candidates was unconstitutional as applied to corporations such as NCRL.

It decided that corporations like NCRL were not like business corporations, but were like individuals and associations, both of which are able to contribute up to $2,000 per election to a candidate.

The Beaumont decision was an extension of FEC v. Massachusetts Citizens for Life (MCFL). In that case the High Court decided that MCFL type corporations could make "independent expenditures" - - expenditures made for communications not coordinated with candidates but containing explicit words that expressly advocate the election or defeat of a clearly identified federal candidate.

In order to qualify as an MCFL-type corporation, the Supreme Court said, a non-profit corporation must (1) be formed to promote "political" (ideological) ideas and not engage in business activities, (2) have no shareholders or persons with a claim on its assets or earnings, and (3) not be established by a business corporation and accept no more than minimal contributions from business corporations. Therefore, the Court reasoned, people donate to support the corporation's issues, no stock-holders lose income, and no "war chests" of business money can skew political campaigns.

The First Amendment requires that laws limiting free _expression and association be justified with strong state interests. Corruption (or the appearance of corruption) is the only interest recognized by the Supreme Court in the campaign finance area.

The High Court declared that corporations like MCFL posed no threat of corrupting the political system. If MCFL-type corporations pose no threat of corrupting the political system, then there is no justification to prohibit direct contributions by corporations like MCFL and NCRL, the Fourth Circuit ruled.

Judge Richard Wilkinson, a widely respected Fourth Circuit judge, highlighted in the court's opinion the vital importance of MCFL-type corporations: "These organizations lie at the expressive heart of our political life." He added that these "groups [are] important symbols in political life and valuable participants in the daily ebb and flow of political discourse."

While the defendant FEC did not vote to take the case to the Supreme Court, the Solicitor General decided to ask the Supreme Court to review the case because it involved a federal statute and because lower courts had divided on the corporate ban issue. While the government took the corporate contribution ban issue to the U.S. Supreme Court, it left NCRL's victory over the FEC regulations unchallenged.

Bopp's Argument

In the Supreme Court, Bopp highlighted both the vital role that organizations such as NCRL play in our democratic republic and the Supreme Court's own prior holding that such organizations pose no potential to corrupt the political system. Consequently, he argued that, corporations like NRLC should be able to make contributions to candidates, just as the Court had earlier decided that they could make independent expenditures supporting or opposing candidates.

Bopp demonstrated that the total ban was unjustified by any interest and unconstitutionally overbroad because there were more narrowly tailored ways that Congress could deal with any corruption concerns that were not already dealt with by the federal contribution limit of $2,000 per candidate.

Bopp answered numerous questions from the justices. He explained that MCFL-type corporations by their very nature and existing laws could not (1) become conduits for business corporations funneling money to candidates or (2) be used by individuals to circumvent their contribution limits.

Some justices inquired whether the legal doctrine of stare decisis (letting prior decisions stand) required them to decide the case for the government on the grounds that the issue of banning corporate contributions had been decided in prior Supreme Court cases. Bopp explained how the two key prior decisions did not govern the present case. Justices Sandra Day O'Connor and Ruth Bader Ginsburg, however, questioned whether those decisions controlled the outcome of the present case.

A decision in this case is expected before the Court adjourns its regular session at the end of June or early July.