McCain-Feingold
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http://en.wikipedia.org/wiki/Bipartisan_Campaign_Reform_Act
ctr public integrity sum
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CAMP FIN OVERVIEW:
...
But the funding that is known offers key clues about the players behind the greatest unraveling of campaign finance regulation in U.S. history.
‘Buckley’ and Cato
One must travel back in time more than 40 years to understand how today’s motley collection of campaign money laws came to be — and how limits on political fundraising and spending have unraveled along the way.
It began with the Supreme Court’s *Buckley v. Valeo* decision of 1976, a reaction to Watergate reforms passed by Congress. The court upheld limits on contributions to political campaigns, but in a critical part of the ruling which would play a major role years later, allowed for unlimited spending on campaigns.
The Buckley v. Valeo fight also helped inspire Ed Crane, former national chairman of the Libertarian Party, which was one of the case’s plaintiffs, to create a libertarian equivalent to the predominant think tanks of the day — the liberal Brookings Institution and the conservative American Enterprise Institute.
With $500,000 from Charles Koch, Crane became the leader in 1977 of the Cato Institute, previously named the Charles Koch Foundation. In 1981, it moved from San Francisco to the heart of American political power — Washington, D.C.
Ever since, the Cato Institute has tirelessly fought against campaign finance laws it considered antithetical to its philosophy of small government and largely unencumbered speech.
“We stand against campaign finance laws in general,” Cato Institute research fellow Trevor Burrus said. “We believe that most campaign finance laws are unconstitutional. They are clear impediments of political speech.”
For the Kochs, was Cato an ideological enterprise or vehicle for self-interest? Both, to some degree. Avowed libertarians, the Kochs control a vast empire of heavily regulated companies that would undoubtedly benefit from less government intrusion. Coloring the political system red instead of blue has practical, financial implications for the Kochs, who overwhelmingly support Republican candidates and causes.
The nation’s campaign money system largely stood unchanged until 2002, when Congress passed the Bipartisan Campaign Reform Act — commonly known as the McCain-Feingold Act, named for its two Senate sponsors. The law curtailed a variety of political activities and included a ban on unlimited “soft money” contributions — corporate and union cash — given to political parties.
It also attracted an immediate backlash by foes of campaign finance legislation. Twelve suits brought by more than 80 plaintiffs — were consolidated as McConnell v. Federal Election Commission, named for Mitch McConnell, a U.S. senator from Kentucky and current majority leader, who has long been in favor of liberalizing restrictions on campaign contributions.
‘McConnell’ et. al.
Those joined together under McConnell included the National Rifle Association, the Republican National Committee, the National Right to Life Committee, the American Civil Liberties Union, the AFL-CIO, the U.S. Chamber of Commerce and others.
Generally, the backers of these campaign finance case litigants are well-known, but not always.
And some are surprising.
Take the ACLU. Despite its reputation as an unabashedly liberal organization, the ACLU has routinely aligned itself with libertarians and conservatives in recent legal fights against campaign finance regulations. Who are the top donors to the ACLU?
Tops is the left-leaning Sandler Foundation, having given more than $24 million to the ACLU and the ACLU Foundation since 2001, according to the Center for Public Integrity’s review of tax records.
Other known funders of the ACLU’s 501(c)(4) “social welfare” nonprofit arms include the ACLU Foundation; Equal Justice Works; Proteus Action League; GLBTQ Legal Advocates; and the Jewish Community Federation of San Francisco, The Peninsula, Marin and Sonoma Counties. Together, they’ve given more than $856,000 since 2010, tax filings show.
Proteus Action League is an affiliate of Proteus Fund, a left-leaning philanthropic organization. It also creates and oversees grants aimed at limiting money and politics, according to its website. Between 2013 and 2015, the Proteus Fund and the Proteus Action League have together given $306,000 to the ACLU and the ACLU Foundation.
Publishers Clearing House money has infused the LuEsther T. Mertz Charitable Trust, which in turn has contributed more than $6.6 million to the ACLU Foundation for various initiatives, according to the Center for Public Integrity’s review of available tax documents from 2005 to 2015.
The National Rifle Association is prominent for its passionate support of firearms rights, and more recently, the presidential campaign of Donald Trump. But it, too, began supporting campaign finance deregulation in earnest at the time of the McConnell case.
One of the NRA nonprofit’s more notable funders is the Cabela’s Outdoor Fund, a social welfare organization connected to the famous outdoor outfitter Cabela’s, which is also a major firearms retailer.
From 2012 to 2015, the fund gave the NRA $1.3 million. Richard Cabela, the now deceased founder of Cabela’s, was a passionate supporter of the NRA. The company, which Bass Pro Shops acquired earlier this year, had about $4.1 billion in revenue last year, according to its annual report.
Koch-connected organizations have also been quite active.
Cato intervened by filing an “amicus brief” in McConnell, as did the Institute for Justice, a group that got its start thanks to the Kochs.
The Supreme Court, for the most part, upheld the “soft money” and political advertising restrictions of the McCain-Feingold law but struck down the age restrictions on minors’ ability to contribute money to politicians as a violation of free speech rights.
The mixed ruling gave pro-political speech advocates fuel to continue challenging campaign laws, and the chipping away of the reforms began in earnest.
The Supreme Court’s ruling in Wisconsin Right to Life v. FEC in 2007 further eroded the McCain-Feingold law by allowing certain nonprofit groups to air political issue ads within 30 days of a primary election and 60 days of a general election. Wisconsin Right to Life Inc., a nonprofit advocacy group, wanted to run ads that would ask voters to call their senators urging them to oppose filibusters of judicial nominees.
Emerging as a national figure in this case after working for years in lower courts was James Bopp, who was counsel for Wisconsin Right to Life.** A bevy of organizations intervened in the case, many arguing for religious freedom of speech. The American Civil Liberties Union, a regular stalwart opponent of limits on free speech, had its say, as did a number of Koch-connected organizations.
Among them, the Center for Competitive Politics (now the Institute for Free Speech), the Cato Institute, the Goldwater Institute and the Institute for Justice.
The Goldwater Institute is a public interest legal organization based in Phoenix, Arizona, named after former U.S. Sen. Barry Goldwater, R-Ariz. Timothy Sandefur, vice president for litigation for Goldwater, said its primary mission is “to defend constitutional principles, through direct litigation and amicus participation.” Donors Capital Fund, the Mercer Family Foundation and the Lynde and Harry Bradley Foundation are among its most generous funders with a combined total of $4.2 million.
‘Citizens United’
In 2010, the Supreme Court ruled in Citizens United v. FEC that corporations, unions and certain nonprofits could raise and spend unlimited amounts of money to advocate for or against politicians. The enormity of the impact of the decision would not be realized for months, even years.
But those who argued the case and participated in it were well aware of its importance. The usual liberal reform groups chimed in, as well as a cadre of Koch-backed crew members, including: the Cato Institute, the Center for Competitive Politics and the Institute for Justice.
A few months later, a federal court ruling in SpeechNow.org v. FEC allowed for the creation of “independent expenditure-only committees” — political groups soon nicknamed “super PACs.” These super PACs could themselves accept unlimited money from corporations, labor unions and even 501(c)(4) “social welfare” nonprofits and business trade associations that themselves could keep their donors secret.
Four years later in *McCutcheon v. FEC*, the Supreme Court axed limits on how much money a person could give, in aggregate, to political parties, candidate committees and PACs. The practical effect: people are now allowed to directly pump hundreds of thousands of dollars more into party and candidate coffers.
Among the organizations involving themselves in the case? The Cato Institute, the Center for Competitive Politics and the Institute for Justice.
Institute for Justice
The Institute for Justice is a nonprofit, libertarian public interest law firm headquartered in Arlington, Virginia, with satellite offices in states including Florida, Minnesota and Arizona.
It was co-founded in 1991 by former Department of Energy Deputy General Counsel Chip Mellor and Clint Bolick, a former assistant at the Equal Employment Opportunity Commission. Billionaire industrialist Charles Koch provided $350,000 in seed money for the organization.
The players who have shaped campaign finance »
The Center for Public Integrity combed through tax information for the Institute for Justice and found some of its top donors include the Claws Foundation, Dunn’s Foundation for the Advancement of Right Thinking, Searle Freedom Trust and the Lynde and Harry Bradley Foundation, totaling about $19.8 million since 1998. But the largest donor identified for the Institute for Justice was the Robert W. Wilson Charitable Trust, giving more than $15.5 million since 2003, according to tax records.
Wilson was a notable hedge funder and philanthropist who jumped to his death from his New York apartment in 2013.
Donors Trust, a Virginia-based free-market charity and “donor advised” fund that distributes money to charities across states has been the Institute for Justice’s most consistent supporter.
Tax records show that Donors Trust has contributed to the Institute for Justice every year since 2004, giving it more than $1.6 million. Charles Koch’s foundation is one of the heavyweights that holds an account with Donors Trust. Koch’s organization also directly gave the Institute for Justice $9,600, according to 2014 and 2015 tax records. The David H. Koch Foundation gave $250,000 in 2001, according to records.
The Jewish Communal Fund, another donor advised fund, has given $317,050 to the Institute for Justice since 2010, according to tax records. The John Templeton Foundation, an avid promoter of free market ideas, gave $900,000 between 2013 and 2014, according to a review of tax records.
One of its other generous donors, however, is the National Christian Charitable Foundation, which gave almost $2.8 million since 2007.
This donor advised fund typically gives to Christian churches and ministries with a mission of “mobilizing resources by inspiring biblical generosity.”
The political leanings of organizations such as the Institute for Justice are not a basis of scrutiny for the National Christian Charitable Foundation, and they’re mostly unknown to the foundation, Chief Creative Officer Steve Chapman said.
“NCF doesn’t have any stance on campaign finance issues,” he said in a statement. “We don’t hold positions on such political topics, and we don’t hold stances on whether charities to which we make grants should or should not be active on that issue.”
Richard Uihlein, a wealthy conservative donor who increased his political giving after the *Citizens United* decision, gave the Institute for Justice $17,500 between 2014 and 2015. But, he wasn’t the only well-known donor to contribute. The Bill and Melinda Gates Foundation, which usually contributes to global health and economic development causes, donated $600.
The Institute for Justice has more than 8,000 donors, said Paul Sherman, a senior attorney for the Institute for Justice who specializes in First Amendment litigation. No one donor provides more than 8 percent of its budget. In its most recent fiscal year, donations comprised more than 96 percent of its income, while the rest came from court-ordered awards of attorneys’ fees.
But that doesn’t mean those donors shape the Institute for Justice’s work, Sherman said.
“IJ’s donors give to us because they support our mission,” he said, noting that the organization has litigated in the same areas for more than over 25 years. “We have never taken a case or passed on a case because of pressure from a donor.”
Other notable contributions to the Institute for Justice include $90,000 from the Dick and Betsy DeVos Family Foundation, which was started by U.S. Secretary of Education Betsy DeVos and her husband in 1989. The foundation has given yearly since 2004, except for 2012 and 2014.
‘SpeechNow.org’ victory
The Institute for Justice notched a win in the U.S. Court of Appeals for the D.C. Circuit in SpeechNow.org v. FEC, a critical lower-court case.
In the case, the Institute for Justice and the Center for Competitive Politics represented David Keating, who now serves as president of the newly renamed Center for Competitive Politics.
Together, the groups questioned whether the federal government had the legal right to make Keating’s SpeechNow.org group register as a political committee — forcing it to adhere to contribution limits for political committees.
The court ruled in SpeechNow.org’s favor, thereby allowing it to raise unlimited amounts of money to independently advocate for or against political candidates. Limits on how much it could receive were found to be in violation of the First Amendment. It was the first time the Citizens United decision was applied in federal courts.
And it gave birth to a kind of political committee that would soon be dubbed a “super PAC.”
Although the Center for Competitive Politics and the Institute for Justice have no formal affiliation, they are “allies in the fight to defend political speech from government regulation,” Sherman said.
Sherman said both organizations have supported each other’s work with amicus briefs, and SpeechNow.org v. FEC was a great match of their strengths.
“CCP’s people had extensive experience with practice before the FEC, and IJ’s people had extensive experience litigating in federal court,” he said. “And we all knew one another. The world of libertarian public-interest lawyers is not huge.”
But the Institute for Justice isn’t always taking up the long, arduous process of going to court. Like other groups that want to provide suggestions and expertise to courts on matters, it has done so through amicus briefs in McConnell, Wisconsin Right to Life, McCutcheon and Citizens United.
The positions that the Institute for Justice has taken on campaign finance issues are made clearer when looking at who funds their endeavors, which include many donor advised funds and conservative-leaning family foundations and charitable groups.
While the Institute for Justice has some history with big money and politics because of its founding relationship with the Kochs, the Center for Competitive Politics can also be counted among the names of Koch beneficiaries.
Center for Competitive Politics
Former FEC Chairman Bradley Smith founded the Center for Competitive Politics in 2005, lamenting the extent of federal regulation on political activity.
The Center for Competitive Politics has waged war against the FEC as litigators, and it has represented others when political free speech is under attack.
David Keating, president of the Center for Competitive Politics, said the organization is simply honoring the guarantees of the First Amendment more so than political ideology or deregulation.
The players who have shaped campaign finance »
The Center for Competitive Politics prides itself on being part of changing the scope of campaign finance laws since its founding, while noting that there is still more freedom to be sought, especially when it comes to contribution and disclosure rules.
“Our country didn’t have campaign contribution limits until the 1970s,” he said. “I don’t see there’s any evidence that it’s made people we’re electing better than they were before the 1970s.”
Keating said government should make it easier for average citizens to become politically involved and, therefore, it should rethink contribution laws.
While the Center for Competitive Politics has not objected to disclosure by candidates and PACs, it is not in favor of pushing for more disclosure. Doing so, said Keating, would result in more difficult fundraising for groups and misleading disclosure information.
“Disclosure is where a lot of the action is right now,” he said. “That’s going to be in the courts and we may well be the ones representing the plaintiffs.”
Because the Center for Competitive Politics’ mission is the protection of free political speech, its legal argument in Wisconsin Right to Life, McCutcheon and Citizens United cases are just part of that mission.
The terrain of money and politics has the Center for Competitive Politics’ opponents questioning whether its ideals are truly its own — or if it’s just the mouthpiece for its wealthy benefactors.
Although the Center for Competitive Politics does not disclose the identity of its donors, the Center for Public Integrity’s review of tax and other financial records indicates the group is funded by a bevy of right-leaning organizations.
Since 2006, the Center for Competitive Politics has received more than $5.3 million from Donors Capital Fund, $1.3 million from the Robert W. Wilson Charitable Trust and $511,000 from the Ed Uihlein Family Foundation — itself funded in full by Republican megadonor Richard Uihlein — and $440,000 from the Lynde and Harry Bradley Foundation.
As far as its Koch alliances? The Charles Koch Institute gave $20,700 from 2014 to 2015, and the Charles Koch Foundation donated over $57,000 from 2012 to 2015, the Center for Public Integrity’s review of tax and other records shows.
A Koch spokeswoman declined to answer specific questions about the brothers’ giving. In a statement, spokeswoman Tonya Mullins said the Charles Koch Foundation “gives to non-profit organizations and more than 300 colleges and universities around the country that are exploring diverse ideas to meet the challenges of our day.”
The majority of the Charles Koch Institute money goes toward a fellowship program between the Center for Competitive Politics and the Charles Koch Institute, in which both organizations split the cost to pay for the fellow’s compensation, Keating said. The fellowship seeks to groom future free enterprise workers. The Charles Koch Institute provides support for internships and job placement for free-market professional hopefuls.
Keating said the Center for Competitive Politics’ donors give because they’re genuinely concerned with protecting free speech and they have a right to maintain their privacy.
If the Institute for Justice and the Center for Competitive Politics are just mere soldiers in an overall battle plan to charge against reform, their success makes them among the most decorated and skilled in the field.
War on disclosure?...
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https://www.alternet.org/2022/10/ted-cruz-campaign-spending/
an 10 22
Documents from the Federal Election Commission (FEC) show that over the summer, Sen. Ted Cruz of Texas received a payment of $555,000 from his campaign. Reporter Bryan Metzger, in an article published by Business Insider on October 18, explains why Cruz “has the U.S. Supreme Court to thank for it.”
Cruz, Metzger notes, challenged part of a 2002 law that “set a $250,000 limit on the amount of money that candidates could raise after the election for the purpose of paying off personal loans to their campaign committee.” The case, Federal Election Commission v. Ted Cruz for Senate, went all the way to the U.S. Supreme Court — and the Court, in a 6-3 ruling, agreed with Cruz. Chief Justice John Roberts used some Citizens United-influenced language in the ruling, writing that Section 304 of the 2002 law “inhibits candidates from loaning money to their campaigns in the first place, burdening core speech."
The 2002 law was the Bipartisan Campaign Reform Act, also known as the McCain/Feingold Act (as in Republican Sen. John McCain of Arizona and Democratic Sen. Russ Feingold of Wisconsin). The High Court’s ruling in Federal Election Commission v. Ted Cruz for Senate struck down Section 304.
READ MORE: Senate Republicans unanimously filibuster bill to get dark money out of politics
“When Cruz first ran for the United States Senate in 2012,” Metzger explains, “he loaned his campaign over $1 million of his own money amid a heated primary campaign against then-Lt. Gov. David Dewhurst of Texas. Cruz would go on to win a run-off against Dewhurst. However, the 2002 Bipartisan Campaign Reform Act — championed by the late Republican Sen. John McCain of Arizona — set a $250,000 limit on the amount of money that candidates could raise after the election for the purpose of paying off personal loans to their campaign committee. Thus, Cruz essentially lost $545,000 of his own money after the campaign, with the outstanding portion of the loans converted to an in-kind contribution.”
Metzger continues, “Six years later, facing an unexpectedly competitive reelection campaign against then-Rep. Beto O'Rourke in 2018, Cruz opted to challenge the law. He lent his campaign $260,000 — just $10,000 more than the limit — on November 5, just one day before the election. That allowed Cruz to initiate a lawsuit against the Federal Election Commission, which eventually made its way up to the Supreme Court.”
When six of the nine High Court justices found Section 304 of the 2002 law unconstitutional, Roberts’ reference to “burdening core speech” was right out of the Court’s 2010 ruling in Citizens United v. FEC — a decision that equated campaign spending with “speech.”
:{
The three dissenters in Federal Election Commission v. Ted Cruz for Senate were all appointed by Democratic presidents: Justice Elena Kagan, Justice Sonia Sotomayor and then-Justice Stephen Breyer, who has since been replaced by President Joe Biden’s appointee, Justice Ketanji Brown Jackson}:.
READ MORE: Barack Obama was 'right' about the negative impact Citizens United would have: legal expert
In her dissent, Kagan wrote, “It takes no political genius to see the heightened risk of corruption — the danger of 'I'll make you richer and you'll make me richer' arrangements between donors and officeholders. In discarding the statute, the Court fuels non-public-serving, self-interested governance."
READ MORE: End Citizens United ad hits Mehmet Oz over New Jersey ties
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http://www.sourcewatch.org/index.php/Bipartisan_Campaign_Reform_Act_of_2002
The Bipartisan Campaign Reform Act of 2002 (H.R.2356), otherwise known as the McCain-Feingold and Shays-Meehan campaign finance reform bills, originated in 2001 with bills sponsored by Sens. John McCain (R-Ariz.) andRuss Feingold (D-Wis.) and Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.), respectively. The purpose of the act was to ban "soft money" from being contributed to candidates and political parties. It also prohibited the airing of "non-partisan" issue ads funded by soft money in days leading up to elections, among other things. President George W. Bush signed the act into law on March 27, 2002.
Contents
Bill summary
The Bipartisan Campaign Reform Act (BCRA) banned "soft money" from being contributed to federal or state candidates and national, state, and local political parties. BCRA also prohibited non-partisan "issue ads" funded by soft money from corporations and labor unions - those referring to candidates for federal election without expressly advocating their election or defeat -- in the 60 days prior to a general election, or 30 days prior to a primary election.It also required the disclosure of sources of finance for "electioneering communications" in excess of $10,000 per year, and raised the legal limits of hard money that could be raised.
Implications for Bush
Some argued that President George W. Bush benefited from the act, as federal contribution limits were increased by it. A Bush Pioneer, for example, who raised $100,000 in 2000--by bundling $1,000 checks from 100 people--could now obtain $2,000 from those donors and enter Bush's new elite club of $200,000 "Ranger" fundraisers."[3]
- See Bush's Rangers for more fund-raising information.
Judicial action on the bill
On June 25, 2007, the U.S. Supreme Court struck down a part of the Bipartisan Campaign Reform Act which restricted corporations and labor unions from broadcasting ads at election time using general funds. In the 5-4 decision in the case of Federal Election Commission v. Wisconsin Right to Life,Chief Justice John Roberts concluded that the ads at issue were not "the 'functional equivalent' of express campaign speech," meaning that these ads are protected under the First Amendment. Supporters of campaign finance reform worried that the decision would lead to a surge of soft money funded campaign ads disguised as issue ads.[4]
Sen. John McCain (R-Ariz.), who spearheaded the legislation, commented on the decision:
"It is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election... It is important to recognize, however, that the Court’s decision does not affect the principal provision of the Bipartisan Campaign Reform Act, which bans federal officeholders from soliciting soft money contributions for their parties to spend on their campaigns."[5]
Articles and resources
Related SourceWatch articles
- 501c4
- 527 committee
- New Democrat Network
- Progressive Donor Network
- soft money
- U.S. presidential election, 2004
- Bush's Rangers
Sources
- :{Jump up:(style="top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:↑ THOMAS page on McCain-Feingold, THOMAS.
- :{Jump up:(style="top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:↑ THOMAS page on McCain-Feingold, THOMAS.
- :{Jump up:(style="top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:↑ Charles Laurence. "Bush's Rangers on trail to round up record $200m,". Telegraph. June 15, 2003.
- :{Jump up:(style="top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:↑ Ariane de Vouge. "Supreme Court Weakens Campaign Finance Law," ABC News. June 25, 2007.
- :{Jump up:(style="top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:↑ Alexander Bolton and Klaus Marre. "McCain: 'Regrettable' decision," The Hill. June 25, 2007.
External resources
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LET THE NEXT FIGHT BEGIN: Campaign Finance Reform Goes To Court | |
|---|---|
| By JOHN W. DEAN | By JOHN W. DEAN |
| Friday, Mar. 29, 2002 | Friday, Mar. 29, 2002 |
President Bush recently, and reluctantly, signed on the Bipartisan Campaign Reform Act of 2002 - better known as McCain-Feingoldor Shays-Meehan, after the Senate and House sponsors. But before the ink had dried, the new law's opponents had filed legal actions to kill the law.
Opponents want to rip the heart out of the effort. Proponents have been gathering potent defensive ammunition for years. In the end, the Supreme Court will decide who prevails. And what the Court will do will likely come down, as it often does, to Justice O'Connor's crucial swing vote.
The Leading Opponents of the Bipartisan Campaign Reform Act
Senator Mitch McConnell actually seems to enjoy playing the Darth Vader of campaign finance reform. He claims that Congress's efforts to control unlimited spending by fat cats and special interest groups seeking federal favors violate the Constitution.
However, the quick-triggered National Rifle Association raced, and beat, McConnell to the courthouse, with their own lawsuit. Their spokesperson commented, "we believe this law cannot be allowed to stand - not even for a moment." It seems the law might restrict the NRA's ability to pour buckets of money gathered from gun-toting enthusiasts throughout the country into ousting candidates who don't support their world-view.
In addition to Senator McConnell, and the NRA, other opponents are likely to file similar complaints for declaratory and injunctive relief in the coming days and weeks. The opponents are an unusual alliance. Campaign reform, obviously, makes for strange bedfellows.
For example, during the Congressional debate the usual right wing suspects like theU.S. Chamber of Commerce, the National Association of Manufacturers, the Christian Coalition and the National Right to Life Committee were stoking the fires of opposition. But also climbing into bed with them was the left-leaning American Civil Liberties Union.
Similarly striking is the diversity among thelawyers signing on to kill the new law. The lead team is the pro bono squad of five listed on Senator McConnell's complaint: Ken Starr (former Solicitor General, U.S. Circuit Court Judge and Independent Counsel Plenipotentiary and Extraordinaire),Floyd Abrams (First Amendment specialist typically associated with liberal causes),Kathleen Sullivan (Dean of Stanford Law School, certainly no hard right-winger, but rather as able a constitutional scholar as can be found, with expertise on campaign finance), Jan Witold Baran (from the political law firm Wiley, Rein & Fielding), and James Bopp, Jr. (a Terre Haute attorney active in conservative causes - Right to Life, Christian Coalition, etc.--who has been involved in campaign reform for many years). And this lineup only represents one plaintiff, Senator McConnell.
The Leading Proponents of the Act
The defendants in the lawsuits are the independent federal agencies responsible for implementing and enforcing the new law: the Federal Election Commission and the Federal Communications Commission. They will be represented first by the Department of Justice's Civil Division, and later when the case goes to the Supreme Court, by theU.S. Solicitor General, Theodore Olson.
Attorney General Ashcroft and Solicitor General Olson, of course, are both staunchly conservative, onetime opponents of campaign reform. (Olson is also a Federalist Society member.) If you are wondering how enthusiastically they will fulfill their Executive Branch responsibility of defending the constitutionality of Bipartisan Campaign Reform Act of 2002, you are not alone.
Indeed, the sponsors of this law are sufficiently concerned about Ashcroft and Olson's lack of enthusiasm that they have hired their own attorneys to intervene. Senators John McCain (R. AZ) and Russell Feingold (D. WC), along with Representatives Chris Shays (R. CN) and Marty Meehan (D. MA),have retained former U.S. Solicitor General (during the Clinton Administration) Seth Waxman, and Burt Neuborne (the former legal director of the ACLU, and currently director of the Brennan Center for Justice at NYU Law School).
It is still too early to know who might join the proponents by filing a friend of the Court amicusbrief.However, there are any number of powerful organizations that have supported campaign finance reform from the outset. Groups like Common Cause and People for the American Way are only two of many who may enter the Court battle.
The President Straddles the Campaign Finance Reform Divide
President Bush demonstrated his ambivalent (no doubt, in private, his negative) feelings toward the new law by signing it while conducting other business with Vice President Cheney and National Security Advisor Condoleezza Rice. No Rose Garden signing ceremony, the President might have resolved, for anything John McCain might sponsor, or endorsed by moderate Republicans.
Shortly after signing the bill, the President headed off to South Carolina for some heavy lifting fund-raising for Republicans in three states. The new law doesn't go into effect until November 6, 2002, which is immediately after the coming Congressional elections, so Bush plans to make political hay while the sun still shines on GOP fat cats.
As Bush was winging South, the White House issued a statement from the President. Reform has widespread public support - with somewhere between 75 to 85 percent of Republicans, and the overwhelmingly majority of Democrats and Independents wanting better campaign finance laws. As a result, the President had to publicly straddle the campaign finance gulf.
His less-than-rhapsodic statement on the law notes that "although far from perfect," the new law would "improve the current financing system for federal campaigns." The ban on unregulated "soft money" from unions and corporations was okay, according to the President, but the law should not have closed the loophole for individuals.
The President did not quibble that it was time to raise the old limits on individual contributions, from $1000 to $2000 - as the law did - for it will mean more hard money can now be collected from individuals. And he had no problem with the "new disclosure requirements" and "speedier compliance with existing ones."
Sending signals to his troops, however, he was quick to say the new law "does have flaws. Certain provisions present serious constitutional concerns." He named the limits on individuals' giving soft money (or unlimited contributions) to political parties, and the "ban on issue advertising." The President likes these present loopholes - which is understandable, since they are large enough to drive a fleet of Brinks trucks through.
Expedited Appeal To Resolve The Constitutional Issues
Anticipating constitutional challenges from the opponents, the sponsors included special (and unusual) provisions creating an expedited procedure to take these constitutional questions first to a three judge panel in the U.S. District Court from the District of Columbia, and then to the U.S. Supreme Court.
Not sinceBush v. Gorehas a more politically charged case been before the nine members of the U.S. Supreme Court. The Court now must tell Americans - who overwhelmingly want reform - what they can and cannot do about a political system run amok with money, a system that forces federal office holders to spend as much, if not more, time fundraising than dealing with the people's business.
Following the Watergate reforms adopted by Congress in 1976, the conservatives on the Supreme Court partially gutted the efforts of lawmakers to control campaign contributions and spending. In*:{**Buckley v. Valeo**}:*, the Court said there could be no limits on spending, but Congress could limit contributions (through measures such as the original, $1000 hard money ceiling). Today, most conservatives believe that is bad law.
In the ensuring years, lower court, and Supreme Court, rulings sinceBuckley have created a mess of loopholes that campaign finance reform aims to close. Most egregious are the loopholes that have resulted in the flow of "soft money" to political parties that is then used to aid candidates, and the use of "issue ads," which are in truth campaign ads by another name, since when it is clear where a candidate stands on the issues, an ad in favor of an issue is plainly in favor of the candidate too - as many issue ads make quite clear.
The lawsuit filed byKen Starr is a let's-throw-everything-including-the-kitchen-sink-at-it approach. But the central constitutional issues relate to the ban of soft money, and issue ads. Let's look at each.
The Constitutional Issue: Banning Soft Money
Opponents claim that soft money raised by political parties is not related to federal elections. They conclude that, therefore it has not been, and should not be, regulated because to do so would violate the First Amendment. This premise, however, is absurd. Congress could fill a warehouse with evidence that soft money is used to get candidates elected.
As for the claim that the restrictions on soft money violate the First Amendment, the reformers have followed the ruling in Buckley v. Valeo, which was recently reaffirmed in the 2000 case of *:{Nixon v. Shrink Missouri PAC}:*. The Court says that political contributions are not protected speech; that Congress can regulate such money not only to prevent corruption but to prevent even the appearance of corruption; and that it can regulate such influences on governmental actions even if they do not come close to bribery, which is obviously already prohibited.
Unless a conservative majority overturnsBuckley, and its progeny - to write a new chapter of First Amendment law - soft money is dead.
The Constitutional Issue: Issue Advertisements
"Issue ads" are ads used in a political campaign that look like, walk like, and quack like campaign ads. But they are not campaign ads, according to current law, because they don't contain certain magic words that would directly connect them to influencing voters - words such as "Vote (or Don't Vote) for So-and-So."
So-called issue ads were born when the Supreme Court ruled in Buckley that when a federal candidate was not involved, Congress's language seeking to regulate ads "relative to" or "in connection with" a federal election was too vague. Congress failed, according to the court, to draw the line between campaign activity (which could be regulated) and mere discussion of issues.
Issue ads are a bad joke. Anyone who has ever seen an issue ad knows that it is not very difficult to design it to sway votes for or against a given candidate without using the magic words that would bring it within the federal law. This is particularly obvious when these so-called issue ads run just a few months, or even weeks, before an election.
To close this glaring loophole, through which millions of dollars have been expended by groups like the NRA, Christian Coalition and Right To Life, the new law redefines political ads. The prohibited ads, which are narrowly and clearly defined, must refer to an identified federal candidate; must target that candidate's electorate; and must be broadcast 60 days before a general election or 30 days before a primary election.
This new definition of "electioneering communication" (which reaches issues ads that are really campaign ads) seeks to provide a clear "bright line" test to avoid the charge of being unconstitutionally vague. The definitions are, in fact, quite explicit.
If regulation of issue ads that are really campaign ads violates the First Amendment, then it is time to further amend the Constitution. If not, it may be time to simply eliminate elections, and declare the winner to be the person who can raise the most money.
The Supreme Court's Position
While predicting Supreme Court rulings is a foolish undertaking, I can't escape feeling that the five justices who awarded the presidency to George W. Bush have already spent so much of the Court's limited political capital, that they dare not render another purely political decision. To do so could mortally wound the Court. Surely, the five Justices themselves realize this.
The Court's existing precedents are anything but clear or unanimous. Partly for this reason, many High Court pundits think that the constitutionality of soft money and issue ads will come down to Justice Sandra Day O'Connor's swing vote, and no one is sure how she will swing.
Hopefully she swings with the times, and thus with the desperately needed and much wanted reforms found in the Bipartisan Campaign Reform Act of 2002. Not withstanding all the legal mumbo jumbo, this - like so many of the Supreme Court's decisions - is more about political philosophy than law. And since it is a political philosophy that now enjoys a bipartisan near-consensus, let us hope the Court will embrace it too.
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John W. Dean, a FindLaw columnist, is a former counsel to the President. Nixon?