High court hears 2 sides of campaign finance

Monday, September 8, 2003

WASHINGTON — The Supreme Court was told today that Congress had overstepped its bounds in passing the McCain-Feingold legislation imposing complicated new rules intended to clean up election campaign finances. The law “intrudes deeply into the political life of the nation” and “in a word, goes too far,” said Kenneth Starr, the former independent counsel who investigated President Clinton, who now is serving as an attorney for challengers to the law.

Defenders of the nation’s new law regulating money in politics countered in a special high court hearing by arguing that ordinary voters needed to know that government works for them and not just for well-heeled campaign contributors.

The special session to hear arguments about campaign finance kicked off the U.S. Supreme Court’s fall term early. The Court must eventually decide if Congress’ rewrite of campaign laws squares with First Amendment free-speech protections.

Although the Court formally begins its new term in the first week of October, the justices took up the crucial case, McConnell v. Federal Election Commission, today.

The case, left over from the previous term, is a challenge to the McCain-Feingold campaign-finance law, formally known as the Bipartisan Campaign Reform Act. Because of the complexity of the case and lower court rulings, the Court decided to schedule the special session to hear extended-time arguments.

The Supreme Court released audio tapes (see link on Oyez) at the conclusion of the arguments, something it has done only twice before, in the 2000 cases about the presidential election and earlier this year in a landmark affirmative-action case.

Lawyers on both sides often seemed to direct their arguments to Chief Justice William H. Rehnquist, whose record on campaign-finance regulations is mixed. The high court seems fairly evenly split among presumed opponents and supporters of the far-reaching law.

Two main issues occupied the court today. The first concerned national political parties, which are now barred from accepting soft-money donations. There are also restrictions on how the national parties deal with their state counterparts and candidates.

The second issue dealt with advertising during the height of a campaign. The law bans corporations and labor unions from using their general treasuries to bankroll what are often called issue ads in the weeks just before a primary or general election.

Issue ads don’t specifically say vote for candidate X or against candidate Y. The law’s supporters say the distinction is meaningless in many cases, because special interests can get their point across if they spend enough money. Under the law, issue ads must be paid for out of an organization’s political funds, through a political action committee.

But lawyers on the other side said the ad restrictions are too harsh.

“It’s not true that this is all about politics,” said lawyer Floyd Abrams, representing Sen. Mitch McConnell, R-Ky., the lead plaintiff in the case. “It’s about speech.”

The two major political parties collected and spent at least $1.1 billion in the 2001-2002 election cycle.

The law’s supporters say it treads familiar constitutional ground since the Supreme Court has already allowed some limitations on free speech in the interest of quelling political corruption or the appearance of corruption.

The law attempts to close loopholes that opened as political parties, candidates and donors figured out ways to skirt the huge web of money laws that date from the Watergate era, the Bush administration and other supporters told the Court.

Solicitor General Theodore Olson said the law was a response to a perception of corrupt politics — “the breakfasts, the lunches, the receptions, the dinners … the relentless pursuit of big contributions.”

“Access is not votes,” countered Justice Antonin Scalia. “Sure, members of Congress are going to give time to people to support their campaign. It doesn’t mean they’re going to vote that way.”

Groups as varied as the American Civil Liberties Union and the National Rifle Association are challenging the 2002 law.

McConnell v. Federal Election Commission may prove to be one of the most important cases the Court decides during the coming term.Though the Court has promised nothing, lawyers on both sides said they expect the justices will rule before the first presidential primary in January. The outcome will govern how money is raised and spent in the 2004 election and beyond.

“What’s on the line in this case is to what extent is the Supreme Court going to allow Congress and the states to regulate campaign finance in any effective way,” said Richard L. Hasen, a professor at Loyola Law School and author of a guide to the nation’s vast and technical web of political money laws.

Television cameras lined the approach to the Court and a line of seat-seekers stretched down the plaza of the Supreme Court building toward the street. Sen. Orrin Hatch, R-Utah, chairman of the Senate Judiciary Committee, arrived early for his seat inside the smallish, ornate courtroom where the ultimate fate of the
far-reaching legislation will be determined.

While the Court reviews more than 1,000 pages of briefs in the case, campaigns go on under the contested rules.

The campaign-finance law being reviewed by the Supreme Court:

  • Prohibits national political parties from raising unregulated “soft money,” including donations of any size from corporations and unions and unlimited contributions from any source.
  • Prohibits minors from contributing to national party committees or federal candidates.
  • Imposes a tougher standard for determining how much interest groups, political parties and candidates may coordinate election activity before interest group or party spending is considered a donation to a candidate subject to federal limits.
  • Restricts election-time political ads by special-interest groups and others, including a ban on such ads mentioning federal candidates in those candidates’ districts in the month before a primary election and within two months of a general election.
  • Bans the solicitation of soft money by federal candidates and officeholders for federal campaigns.
  • McConnell v. Federal Election Commission at a glance

    (See Supreme Court page on the case.)

  • Issue: Whether the new campaign-finance reform law violates the free-speech rights of contributors to candidates and parties.
  • Summary: The case involves four First Amendment challenges to certain sections of the Bipartisan Campaign Reform Act of 2002. The act (also known as the McCain-Feingold law) bans corporate, union and unlimited contributions (known as soft money) to national party committees. Various interest groups — including those financed with corporate or union money and those that do not disclose their donors — are prohibited from airing ads mentioning federal candidates in their districts in the month before a primary and two months before a general election. Eighty groups or individuals have filed petitions in the case. The Bush administration is defending the constitutionality of the act.
  • Lower court ruling: By a 2-1 vote, a special three-member court upheld certain sections of the act and struck down other sections. The ruling came from a fast-track panel composed of D.C. U.S. Circuit Court of Appeals Judge Karen Henderson, District Judge Colleen Kollar-Kotelly and District Judge Richard Leon.
  • Last term, in Federal Election Commission v. Beaumont, the Supreme Court by a 7-2 vote upheld portions of the Federal Election Campaign Act that prohibited advocacy groups from contributing to candidates’ campaigns.

  • Hear audio of the oral arguments.

  • See transcript.
  • For a complete overview and more information on campaign finance as a free-speech issue, see the campaign-finance section.