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The Supreme Court Upholds McCain-Feingold

I feel as though I should have some profound commentary on the Supreme Court's decision upholding the Bipartisan Campaign Reform Act (BCRA). I know a lot about it; I even helped put the funding together for the legal defense. But reading the decision through quickly, my reaction was that it seemed anti-climactic. Congress wrote a law that was constitutional; the Court held it to be constitutional. The alignments were not surprising, the result not unduly complex. Perhaps the only surprise was that the Court fairly easily rejected the plaintiffs strongest argument, which was that the provision limiting ads that mention a candidate right before the elction was overbroad.

Long ago, right after the law passed, former Federal Elections Commission chair Trevor Potter cut through the thicket of arguments to make clear that the Supreme Court had, over several decades, laid out some very specific markers of the kinds of restrictions that it would permit in a campaign finance law, and BCRA followed those markers quite carefully, with one or two exceptions. (Read Potter's original article here )

The lower court decision in May, which was really non-decision as it was three separate and overlapping opinions by three judges who could not even agree on a set of facts, invited a lot of analysis, and seemed to pose the possibility that the Court would render an equally complex decision, since it didn't really have the option of upholding or overturning the lower court. But that was misleading. The Supreme Court has visited these issues again and again; it's not a great mystery what the rules are, and the congressional sponsors had superb legal advice, from Potter, from Fred Wertheimer, from the Brennan Center for Justice and many others. And they took the advice, which is good.

The flip side of this point is that the Court has marked out both what is permissible in campaign reform, and what it would hold unconstitutional. And there isn't a lot of room to further limit money beyond what's in this bill. Certainly the independent organizations being put together to generally boost Democrats and Republicans next year, which can't run ads mentioning candidates and can't coordinate with candidates, cannot be limited. And it would be difficult to imagine limiting issue ads that occur well before an election, such as the Bush ad accusing Democrats of opposing tough action against terrorism, a classic soft money ad, which might influence the election were it not laughable.

That means that the best opportunity for further reform is not to keep chasing after "loopholes," or non-loopholes, but to build some counterweights to this kind of money, in the form of public financing, as in Arizona or New York City, or free broadcast time for candidates. Those have to be the next step in reform.

Finally, an interesting paragraph jumped out of the opinion, all of which is a well-written, clear statement of the problem and the logic of the solution:

Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote (or, presumably, evidence of a specific instance where the public believes a vote was switched), Congress has not shown that there exists real or apparent corruption. But the record is to the contrary. The evidence connects soft money to manipulations of the legislative calendar, leading to Congress. failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform. To claim that such actions do not change legislative outcomes surely misunderstands the legislative process.

Well put.

Posted by Mark Schmitt on December 10, 2003 | Permalink


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What do you think about the role of the FEC? I guess I'm specifically wondering about how much leeway it has in terms of enforcement of BCRA, but really I don't even know what to ask.

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