Campaign finance contribution case on Indiana Supreme Court’s docket

Jim Bopp’s anti-abortion clients haven’t been limited by Indiana campaign finance laws or restricted from making contributions, but he argued Thursday that a “plain language” reading of state statute could potentially harm political action committee activities in the future.

The well-known Hoosier attorney was before the Indiana Supreme Court in a hearing determining whether Indiana’s election code prohibits or limits corporate contributions to PACs—also known as political action committees—that engage in independent campaign-related expenditures.

The Office of Secretary of State, represented by Kyle Hunter from the attorney general’s civil appeals unit, said the statute barring such contributions wasn’t enforced and, additionally, didn’t even apply to Bopp’s client—the Indiana Right to Life Victory Fund.

Both sides agreed that no one was restricted currently, and agreed that the Victory Fund qualified as a PAC and is registered with the state as a PAC, leaving the justices confused about their court’s role and openly wondering whether the question could have been resolved outside of the court.

“(The state says), ‘There’s nothing in the statute that prohibits your clients from doing what they want to do.’ And instead of taking yes for an answer, you say, ‘Well, wait a minute; we can’t do it under statute. We need a federal court to tell us it’s unconstitutional,’” Justice Geoffrey Slaughter said to Bopp. “That’s an oddball position to be in, isn’t it?”

A win-win for Bopp

Bopp—a prominent anti-abortion advocate—played a major role in Citizens United v. the Federal Election Commission, which struck down federal prohibitions on independent expenditures by corporations in campaign finance. He argued that Indiana’s law predated that decision and could be interpreted to limit such contributions in the future.

Slaughter acknowledged Bopp’s wealth of election law knowledge, saying at one point Bopp had “forgotten more Indiana election law than I know,” but several justices sought to understand the need for the hearing, which was assigned from the federal Seventh Circuit.

“(The state’s representation, Hunter, agrees) that the state cannot regulate independent expenditure PACs … then why are we here? Why isn’t there some type of settlement, some type of agreed declaration?” asked Chief Justice Loretta Rush.

In response, Hunter said, “We have the duty to defend the statute but also these are state officials—from both parties—that have not indicated any intention to read the statute in any way that is unconstitutional.”

Hunter said the specific section of election code being considered was drafted by a General Assembly seeking to prevent corruption and that the ambiguity of the statute protected groups such a the Victory Fund.

Any decision from the court could be seen as a win for the Victory Fund, Justice Mark Massa observed.

“Bopp wins either way,” he said. “If (the state’s) interpretation of the state is that it doesn’t apply to his client, he wins. If you’re wrong on that and it does apply to him, then surely the Seventh Circuit (Court) will strike it down.”

In a rebuttal, Bopp said his concern was about the future. And while current elected officials were sympathetic to his clients and told him they didn’t enforce the statute, nothing had been done to prevent future elected officials from changing tactics.

“What (has the state) done to prevent that law from being applied to us? … They have done nothing, nothing legally binding on anyone,” Bopp argued. “… We are entitled to bring a pre-enforcement, facial challenge because the statute is the source of the injury, not the meaningless promises of a couple of people who would otherwise enforce it.”

He argued that an interpretation of the statute saying it didn’t apply to his client would be a win but would go against the “plain language” of the statute.

In addition to Thursday’s case, Bopp is fighting on behalf of Attorney General Todd Rokita in a separate $250,000 legal contract to protect an informal advisory opinion related to Rokita’s outside employment from public purview.

Justices will announce their final decision in the coming weeks.