LET THE NEXT FIGHT BEGIN:
Campaign Finance Reform Goes To Court

By JOHN W. DEAN

Friday, Mar. 29, 2002

President Bush recently, and reluctantly, signed on the Bipartisan Campaign Reform Act of 2002 - better known as McCain-Feingold or 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 the U.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 the lawyers 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 the U.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 amicus brief. 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 since Bush v. Gore has 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 since Buckley 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 by Ken 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 overturns Buckley, 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.


John W. Dean, a FindLaw columnist, is a former counsel to the President.

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