BY RONALD K.L. COLLINS · APRIL 7, 2014
Though Erin Murphy and Bobby Burchfield were in the limelight for their victory in McCutcheon, James Bopp (the noted campaign finance lawyer) was hardly out of the picture. He had, after all, another campaign finance case up his sleeve, and what seemed to be a good one at that.
The claims in Iowa Right to Life were twofold: (1) Whether an Iowa ban on political contributions by corporations (and certain business entities), but not by unions, violates the Equal Protection provision of the Fourteenth Amendment, and (2) Whether such a corporate-contribution ban runs afoul of the First Amendment. The facts of the controversy involved an attempt by the Iowa Right to Life Committee (a non-profit corporation) to contribute $100 to Brenna Findley, a candidate for Iowa Attorney General. Iowa law, however, prohibits such corporate contributions, but does not bar unions from making political contributions. This disparity in treatment notwithstanding, the U.S. Court of Appeals for the Eighth Circuit upheld the law and later declined to rehear the case en banc, whereupon James Bopp petitioned the Supreme Court to hear the case.
After suggesting that there was a conflict of law in several lower courts and that the Supreme Court should grant review to reconcile them, Bopp argued that “corporations and unions are similarly situated regarding their interest in making political contributions. Yet in Iowa, corporations, but not unions, are banned from making political contributions. Iowa must justify this disparate treatment. And Iowa must do so under strict scrutiny, both because fundamental rights are involved and because the corporate-contribution ban is content-based.” On the First Amendment side of the constitutional ledger, Bopp had to work around a hostile 2003 precedent,Federal Election Commission v. Beaumont, a case which he argued and lost to none other than Paul Clement(the co-counsel in McCutcheon). That ruling, decided before the advent of the Roberts Court, established that a direct contribution prohibition to nonprofit advocacy corporations is consistent with the First Amendment. For his part, Bopp argued forcefully that “Beaumont is on shaky precedential ground in the light of Citizens United.”
But it all proved to be of no constitutional moment: cert. denied.