McConnell V. FEC: Reforming Campaign Finance: Court Upholds Campaign Finance Act despite First Amendment Dissents

By Hudson, David L., Jr.; Williams, Charles F. | Social Education, March 2004 | Go to article overview

McConnell V. FEC: Reforming Campaign Finance: Court Upholds Campaign Finance Act despite First Amendment Dissents


Hudson, David L., Jr., Williams, Charles F., Social Education


In a clear-cut victory for campaign-finance reformers last December, a sharply divided U.S. Supreme Court upheld virtually the entire Bipartisan Campaign Reform Act of 2002 (BCRA). McConnell v. FEC, No. 02-1674 (slip opinion available on the web at www.supremecourtus.gov). The Court's 298-page ruling rejected the free speech and other constitutional arguments pressed by an impressive array of challengers who had filed eleven suits against the law.

The Court employed three separate majority opinions to decide the constitutionality of the various provisions contained in the five parts, or "titles," of the act:

* Justices John Paul Stevens and Sandra Day O'Connor (joined by Justices David Sourer, Ruth Bader Ginsburg, and Stephen Breyer) delivered the Court's opinion upholding the constitutionality of the statutes most important features: Congress's effort to plug the "soft-money" loophole and its regulation of "electioneering communications."

* Chief Justice William Rehnquist (joined by all of the other justices in whole or in part) delivered the Court's opinion striking down the act's ban on political contributions by minors, upholding its "stand by your ad" requirements, and declining to rule on, either its increase in "hard money" limits or its exception for candidates facing self-financed opponents (the law's so-called "millionaire exemption").

* Justice Breyer (joined by Justices Stevens, O'Connor, Souter, and Ginsburg) delivered the opinion upholding the BCRA's requirement that broadcasters maintain certain publicly available records of politically related broadcasting requests.

Background

In 1997, Congress sought to address three important developments in campaign financing: "the increased importance of soft money, the proliferation of issue ads, and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections." (1)

The term "soft money," though undefined in federal election laws, generally refers to money raised outside the regulatory structure for federal election campaigns. "Soft money" is money that is (theoretically) used for political parties' party-building activities and for so-called "issue ads" that supposedly do not target any specific election. "Hard money" refers to federally regulated funds subject to strict contribution limits under the Federal Election Campaign Act of 1971 (FECA). It represents money that a donor contributes for the purpose of influencing an election for federal office. Hard money is regulated by the FECA; soft money was not--until the BCRA.

The resulting legislation was known as either the McCain-Feingold bill, after its main Senate sponsors--Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.)--or Shays-Meehan, after its main sponsors in the House of Representatives, Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.). The bill sought to close loopholes in the existing campaign-finance system. Rep. Shays explained,

   Our legislation aims to end the
   current system in which corporate
   treasury and union dues money
   drowns out the voice of individual
   Americans by banning soft money
   and closing the sham "issue ad"
   loophole. By calling sham issue
   ads what they truly are--very real
   campaign ads--we enforce the
   1907 and 1947 laws and prevent
   corporate treasury and union dues
   money from funding campaigns. (2)

To the surprise of some, President George W. Bush (who had previously expressed doubts about the law's constitutionality) signed the act into law on March 27, 2002. Its three main provisions were: (1) a ban on "soft money" donations to political parties by individuals, corporations and unions; (2) restrictions on "electioneering communications"; and (3) an increase in the limits on donations that individuals may make to candidates for federal office.

The Law

Title I of the Bipartisan Campaign Reform Act not only prohibits national political parties from raising soft money, it also prohibits state and local political parties from spending soft money on so-called "federal election activity. …

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