Challenge to Campaign Spending Caps Narrowed

     NEW ORLEANS (CN) – A federal judge in Louisiana has whittled a string of Republican challenges to federal campaign contribution limits that allegedly kept them from mentioning former Democratic Rep. William Jefferson’s corruption trial during the 2008 elections. U.S. District Judge Helen Berrigan certified just over half of the GOP’s eight constitutional questions to the 5th Circuit.




     Former challenger Anh “Joseph” Cao, who defeated the incumbent Jefferson in 2008, joined the Republican Party of Louisiana and the Republican National Committee in challenging several provisions of the Federal Election Campaign Act.
     They argued that the Federal Election Commission’s “ambiguous” campaign contribution limits stopped them from commenting on pending federal corruption charges against Jefferson during the 2008 campaign. Republicans were “chilled” from speaking out for “fear of an investigation and possible penalties,” they claimed.
     The FEC’s coordinated-contribution provision specifically caps campaign activity within 90 days of a congressional or Senate election, and within 120 days of a presidential election.
     When the complaint was filed in 2008, the Republican plaintiffs said they had already reached their contribution limit, but wanted to make “more such expenditures” on Cao’s behalf.
     They challenged the phrase “in connection with the general election campaign of a candidate” — as stated in the FEC’s guidelines — as “unconstitutionally vague and overbroad.” They further argued that Congress lacks the authority to regulate federal elections, unless the regulation limits activity that’s “unambiguously campaign related,” such as explicitly endorsing a federal candidate, paying a candidate’s bills, or distributing a candidate’s campaign literature.
     The Republicans said they were “chilled” from lobbying incumbent Rep. Jefferson on Cao’s behalf, because “by merely referencing Rep. Jefferson within 90 days of the December 6, 2008 general election, they had already met their contribution and Party Expenditure Provision limits.”
     And because they had already worked with and spoken to Cao about his campaign, any other public communications would have put them both at risk for “at least a burdensome and intrusive investigation,” the plaintiffs claimed.
     In August 2009, Jefferson was convicted of 11 counts of public corruption and was sentenced to 20 years in prison.
     In her 97-page “order and reasons,” Judge Berrigan had to decide if the constitutional challenges were frivolous, and if not, to “make findings of fact and certify the issues to be resolved to the appellate court.”
     Berrigan allowed the plaintiffs to certify four questions to the 5th Circuit and part of a fifth, but rejected the remaining three questions as frivolous.
     Berrigan allowed questions on whether the plaintiffs had standing, whether Congress can regulate contributions that aren’t “unambiguously campaign related,” and whether the $5,000 contribution limit is constitutional.
     But the judge tossed as frivolous the plaintiffs’ questions on whether the parties’ “own speech” is exempt from regulation, and whether coordinated expenditure limits are constitutional.

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