UPDATES & ANALYSIS

10.02

Iowa Right to Life Asks the Supreme Court to Overturn Iowa’s Ban on Corporate Contributions

by Colin Smith | October 2, 2013

By Colin Smith

After scoring a relatively successful victory before the Eighth Circuit, conservative election law attorney Jim Bopp is taking his case to overturn parts of Iowa’s campaign finance law to the United States Supreme Court.  In a recently filed cert petition, Mr. Bopp — the lead counsel for Iowa Right to Life in the Iowa Right to Live v. Tooker litigation (a case which we have previously covered on this blog here, here, and here)— has asked the Supreme Court to review two specific questions regarding the constitutionality of Iowa’s campaign finance laws.

First, Iowa Right to Life wants to know whether Iowa’s ban on direct corporation-to-candidate contributions is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.  Iowa Right to Life argues that prohibiting corporations from donating directly to candidates whom they support while allowing other entities, such as labor unions, the ability to make direct contributions constitutes unequal treatment between similarly situated would-be contributors.  This argument was rejected by the Eighth Circuit.

Second, Iowa Right to Life wants to know whether Iowa’s corporate contribution ban violates the First Amendment.  A similar question was brought before the Supreme Court in 2003 in Beaumont v. FEC, which upheld a challenge to the federal government’s ban on corporate contributions by holding that prohibiting direct corporate contributions by nonprofit advocacy-oriented corporations was consistent with the First Amendment.  Iowa Right to Life is now asking the Court to revisit the Beaumont decision on the theory that the rationale underlying that previous case has been eroded by subsequent Supreme Court cases, including Citizens United v. FEC and others.

In addition to pressing this First Amendment argument, Iowa Right to Life is also squarely asking the Court to overturn the traditional political-expenditure versus political-contribution dichotomy that has existed in election law jurisprudence since the Buckley v. Valeo decision in 1976.  To characterize Iowa Right to Life’s invitation to reverse this long-standing expenditure/contribution distinction as ambitious would be an understatement: if the Court were to reverse its prior rulings on this issue it would mark a great shift in the direction of political law.  That is not to say that academics and lawyers in the election law field haven’t tried to make a similar argument before; they have. In fact, in a case pending before the Supreme Court right now, McCutcheon v. FEC, this argument for reversing the expenditure/contribution distinction has been pressed in both merits briefs and by amici— but in order for the Court to actually adopt such a position, it would require revisiting decades of case law.

So what are the chances that the Iowa Right to Life v. Tooker cert petition will be granted? Not great.  Convincing the Supreme Court to grant any cert petition is a herculean task, but this one may face more difficult odds than normal for two reasons: First, while the issue presented in the cert petition has unique constitutional importance, it is not an issue that is the subject of a circuit split among federal courts — a ground typically thought of as especially appropriate for granting cert petitionsSecond, after the Citizens United case in 2010, and the McCutcheon case in this upcoming term (which is predicted to be a significant one), the Supreme Court may not be inclined to confront head-on the politically sensitive issue of corporate contributions anytime soon.

That said, until this petition is officially denied, there is always a chance.

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