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Read the Supreme Court's decision in the case of McConnell vs. the Federal Election Commission and the docket, including oral arguments presented, previous decisions on campaign financing, amicus filings and other related cases, by arrangement with FindLaw |
WASHINGTON—On the eve of what promises to be the most expensive election in U.S. history, the Supreme Court upheld the new campaign-finance law, a ruling that will weaken the two major political parties and enhance the clout of outside interest groups as they take over activities once financed by the parties.
The high court's 5-4 decision rejected claims that political fund-raising and spending are protected by the free-speech clauses of the First Amendment.
The ruling is likely to increase the influence of political fund-raisers adept at collecting many individual donations. It could also prompt candidates to follow the lead of Democratic presidential candidate Howard Dean, who has used the Internet to raise millions of dollars in very small donations to support an unexpectedly strong campaign this year.
On the other hand, the ability of corporations, trade groups and labor unions to finance the last-minute attack ads that have become a hallmark of modern campaigns will be severely restricted, and their sponsorship of such commercials will have to be disclosed.
Voting along the ideological lines that have defined some of its most important decisions in recent years—with Sandra Day O'Connor providing the swing vote—the justices surprised political and legal observers by sustaining the law's two most-disputed provisions. One bans unlimited donations to political parties, funds known as "soft money." The other provision bars outside groups from financing radio and television ads that attack or support federal candidates by name or image within 30 days of a primary and 60 days of a general election, unless they use money raised from individual donors in restricted increments.
When the law was passed in 2002, opponents attacked it on free-speech grounds, and the legislative battle over the restrictions created bipartisan forces on both sides of the issue. Advocates of the McCain-Feingold law—nicknamed after its chief Senate sponsors, Republican Sen. John McCain of Arizona and Democratic Sen. Russ Feingold of Wisconsin—reacted with glee. "Everything is beyond my wildest optimistic imaginings," said Norman Ornstein, a political scientist at the American Enterprise Institute who helped sponsors draft the law. "They've basically upheld the gist of everything."
The near-total defeat stunned opponents of the law and several corporate trade associates held emergency meetings to begin rethinking their strategies after campaigns in which they enjoyed considerable influence. The Pharmaceutical Research Manufacturers of America, or PhRMA, spent $100 million in the past two election cycles, mostly on last-minute advertising using a front group. The U.S. Chamber of Commerce financed a $13 million ad campaign in 2002 and spent additional sums under the name Americans Working for Real Change. Under the law upheld by the high court, such activities are illegal.
By upholding the Bipartisan Campaign Reform Act's soft-money ban, the court effectively curtailed the power of national party committees, the organizations that oversee Republican and Democratic party strategy, fund-raising and spending. Instead, it shifted influence to outside groups and their wealthy donors, who are now financing activities that the parties will no longer be able to, including voter mobilization. Many new outside groups intent on influencing congressional and presidential races have formed since Congress passed the law, and the court's ruling secures their place in the political process.
Supporting the new law were Justices O'Connor, John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. The dissenters were the court's conservative wing: Chief Justice William Rehnquist, Antonin Scalia, Clarence Thomas and Anthony Kennedy. In a stinging dissent, Justice Antonin Scalia called the ruling "a sad day for the First Amendment."
The court said the central question presented by the soft-money ban was whether large donations to the parties have a corrupting influence on public policy or even appear to do so. "Both common sense and the ample record in [this case] confirm Congress' belief that they do," said Justices Stevens and O'Connor in a jointly authored opinion that ran 119 pages. Previous rulings "have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits."
Groups formed by activists from both ends of the political spectrum, including the Democratic-aligned labor community and the antitax wing of the Republican Party, are now positioned to collect some of the big soft-money checks that the national parties can no longer accept. Most plan to use that money to conduct voter registration projects and to run TV ads for individuals candidates during months that aren't affected by the law's restrictions.
Though these groups will see their influence increase, their donors won't enjoy the direct link to grateful candidates and party officials that the soft-money system engendered. There are also risks involved in making contributions to the new organizations because rules governing what they can do and how they can be structured remain murky. The Federal Election Commission early next year is expected to issue an advisory opinion that provides clearer guidelines on how these groups—known as 527s, a reference to their nonprofit status under the tax code—can operate. But legal experts in both parties predict that the courts will ultimately be drawn into that fray.
Even as the court attempted to provide clarity after a remarkable period of uncertainty in the months before it ruled, justices in the majority said they likely will have to revisit the matter in the future. "We are under no illusion that [the law] will be the last congressional statement on the matter," Justices Stevens and O'Connor wrote. "Money, like water, will always find an outlet. What problems will arise and how Congress will respond, are concerns for another day."
The law also will elevate the importance of individual fund-raisers with large networks of wealthy donors who can afford to write $2,000 checks to individual candidates, the limit under the new law (raised from $1,000 under the old law). In the short-term, that will benefit those in President Bush's vast fund-raising network. So far, the Bush re-election campaign has raised nearly $100 million.
The justices rejected only two provisions of the law, one of them potentially significant.
As passed by Congress, the law would have forced the national political parties to chose between coordinating their campaign activities with House and Senate candidates or working independently of them. The goal was to discourage the political parties from evading limits on how much they could do to support candidates by creating independent arms. The court's rejection of that part of the law was a big boost for the Republican Party because it enjoys a decisive fund-raising advantage over the Democrats.
The other rejected provision was a ban on campaign contributions from minors, which had been aimed at preventing wealthy donors from evading limits by funneling extra money through their children.
Groups such as the National Rifle Association already are planning ways to adapt to the new rules of the game. The NRA, which can no longer finance ads through its own corporate account, is trying to beef up contributions to its political action committee—limited under the law to $5,000—so it can remain active in the final days of future campaigns. Under the law, PACs can run ads whenever they want, as long as they are financed with restricted donations, known as "hard money."
WASHINGTON—U.S. Sen. Mitch McConnell said a Supreme Court decision Wednesday backing a 2002 campaign finance reform law won't reduce the influence of money in politics.
"This law will not remove one dime from politics," McConnell, R-Ky., said in a statement. McConnell was the lead opponent of the law, which the court upheld in a 5-4 decision.
The court's majority backed the Bipartisan Campaign Reform Act's ban on soft-money political donations and restrictions it placed on election advertisements.
The decision was a blow to opponents such as McConnell, who charged the law will restrict free speech by limiting certain forms of issue advertising shortly before an election. The decision "has unfortunately allowed Congress to diminish the ability of political parties and citizens groups to speak in the days before an election," McConnell said.
McConnell said he doubts the decision will curb the influence of money in campaigns. He cited the case of investor George Soros, who plans to spend millions funding an interest group that wants to oust President George Bush next year.
"Outside special interest groups have become the modern day political parties," McConnell said. "Soft money is not gone - it has just changed its address."
(This article was originally published Wednesday)
WASHINGTON—The Supreme Court, agreeing with Congress that the major political parties have sold access to federal candidates and officeholders to the highest bidders, yesterday upheld the most sweeping curbs ever on private money in national politics.
"It was not unwarranted for Congress to conclude that the selling of access gives rise to the appearance of corruption," the court said in the lead opinion in its 5-4 decision rejecting constitutional challenges to the campaign finance law enacted early last year.
The majority found the law's two key sections to be constitutional: a broad ban on unlimited and unregulated contributions to political parties and a strict curb on broadcasting political ads financed by corporations, labor unions, nonprofit groups, and wealthy individuals in the weeks before elections for Congress and the presidency.
The ad restriction applies to groups ranging across the political spectrum, from the National Rifle Association and US Chamber of Commerce to the American Civil Liberties Union and the AFL-CIO.
The court unanimously nullified two relatively minor provisions, a flat ban on any contributions to federal campaigns by anyone under age 18 and a technical provision limiting how parties can aid their nominees to federal office.
The law, known formally as the Bipartisan Campaign Reform Act of 2002, has been in effect for 13 months but under a cloud of uncertainty.
The court swept that cloud away in time to let the parties and their candidates know for sure what legal rules would apply as the Democrats' presidential primaries begin next month.
Treating the constitutional dispute as one of special importance, the justices had returned early from their summer recess to hold an unusual daylong hearing in September to consider 12 separate cases attacking nearly every provision in the lengthy law.
After three months of private deliberations and difficult negotiations, the court produced three majority opinions dealing with different parts of the law and five dissenting opinions. Together, they amounted to a stack of 268 pages plus appendices.
For a court that in recent years had struck down more than 30 acts of Congress for constitutional reasons, the ruling was a gesture of major deference to lawmakers, at least when they regulate an activity more familiar to them than to judges—national politics.
The court said it was "under no illusion that [the new law] will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day."
The same 5-4 combinations of justices decided the key issues. In the majority were John Paul Stevens, Sandra Day O'Connor, Stephen G. Breyer, Ruth Bader Ginsburg, and David H. Souter. Dissenting were chief Justice William H. Rehnquist and justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.
In one of the dissenting opinions, Rehnquist argued that Congress "should not be able to broadly restrict political speech in the fashion it has chosen." Scalia accused the court of having "smiled with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government."
President Bush, who had signed the measure into law in March 2002, with some misgivings about its constitutionality, said through his spokesman that he "believes that overall it helped improve the system" and that the new decision "will help bring clarity to the process."
In the main, 119-page opinion, Stevens and O'Connor wrote that the law "is the most recent federal enactment designed to purge national politics of what was conceived to be the pernicious influence of `big money' campaign contributions."
The seven-year effort to enact the law, they said, provided evidence to support "the suggestion that money buys influence. It is no surprise that purchasers of such access unabashedly admit that they are seeking to purchase just such influence."
The most surprising part of the ruling was the reasoning the court used to uphold the restriction on ads that seek to attack or to promote a candidate but do not specifically say "vote against" or "vote for" that candidate.
The court discarded a conclusion from its major campaign finance ruling in 1976, that the First Amendment protects a political ad that unmistakably favors or opposes a candidate, as long as it does not urge specific votes for or against that candidate.
In fact, the court said, it had never meant to give total constitutional protection to such advertising and free it from all government regulation. Its pevious rulings, the majority said, "in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaign-related speech."
Corporations, labor unions, nonprofit groups, and wealthy persons had used the opening the court appeared to have given them in 1976 as permission for a flood of what they called "issue ads" that were clearly aimed at influencing election results when they aired in the closing days of campaigns. Sponsors of the new law condemned them as "attack ads" or "sham ads."
The new law does not outlaw those those ads, but it prohibits corporations, unions, and others the restriction covers from spending unlimited amounts of their own money to finance them. Instead, those groups must set up separate political action committees. Those committees can raise money only within the rather tight ceilings on contributions to federal campaigns.
Money raised and spent under those ceilings is usually referred to as "hard money," while the unlimited amounts raised and spent outside those restrictions has come to be known as "soft money." In recent elections, "soft money" had become a major factor in presidential and congressional campaigns and led Congress to pass the 2002 law.
The new law's ban on soliciting and spending "soft money" was tied directly to the new limits on political ads. The law defines such ads as those seeking to influence elections that are transmitted by broadcast, cable, or satellite outlets within 60 days before a general election or 30 days before a primary.
The key results of the decision, in addition to upholding the ban on unlimited financing of federal campaigns and the restraint on political ads, include the following:
The court upheld, by an 8-1 vote, a requirement that anyone who spends more than $10,000 in a year on political ads in federal campaigns must report to the government within 24 hours after reaching that total.
By a 5-4 vote, it allowed Congress to extend the ban on unlimited use of campaign money to state and local political parties, state, and local candidates, and state and local officeholders when they seek to promote or attack a federal candidate.
By the same vote, it upheld a ban on national and state parties soliciting money for tax-exempt groups for use in federal campaigns.
The court left undisturbed, for procedural reasons, the new law's increase in the ceiling on individual candidates each election, to $2,000 from $1,000. It found that the challengers had no right to test that increase, which remains in effect.
Similarly, the justices refused to rule on the validity of provisions in the new law that allow congressional candidates running against wealthy, self-financed candidates to raise and spend more money than federal ceilings otherwise would allow. Those provisions, too, are now in effect.
source: http://www.boston.com/news/nation/articles/2003/12/11/campaign_finance_law_is_upheld?mode=PF 11dec03
WASHINGTON—Fred Wertheimer was an idealistic young activist back in 1971, when he joined a nascent citizen advocacy group called Common Cause and was assigned to handle the issue of campaign finance reform.
"I said, `I'll work on this for a couple of years.' Thirty-two years later, I'm still working on it," said Wertheimer, who now heads a group called Democracy 21. "Reform is not for the short-winded."
It has been a long, hard slog for promoters of an overhaul of campaign finance rules. Wertheimer encountered what he called "enormous resistance" on Capitol Hill, where lawmakers were reluctant to limit the amount and source of money they could collect for increasingly costly campaigns.
Watergate prompted Congress to impose some campaign finance limits, he said, but the effort to ban unlimited contributions called "soft money" and to control the sometimes vitriolic "issue ads" before an election would not produce results for decades.
Advocates credit the four principal authors of the 2002 law—Representatives Martin T. Meehan, a Lowell Democrat, and Christopher Shays, a Connecticut Republican; and Senators John McCain, Republican of Arizona, and Russ Feingold, Democrat of Wisconsin—with devoting seven straight years to lobbying nervous colleagues to back the legislation.
Even when the sponsors won the backing of Democratic leadership and got majority support for the package, its approval was not assured. Republican House leaders refused to allow a vote on the House floor, and Meehan and Shays had to collect signatures on a "discharge petition," which forced the bill to the floor over the objections of the Republican leadership. Even Representative Richard Neal, a Springfield Democrat who shares an apartment with Meehan in Washington, did not sign his friend's discharge petition until the last moment.
"We kept at it, persevered, and we were able to get a bipartisan consensus. We were even able to get President Bush to sign it," Meehan said, joking. He was referring to Bush's reluctance to back a campaign finance overhaul that did not allow individual union members to stop their dues from being used for political donations.
Meehan approached Bush Monday night at a White House Christmas party and told him that he believed the court would soon rule "on a law you and I made happen." The president laughed, Meehan said.
Meehan called the US Supreme Court's decision upholding the law "a huge victory for democracy. The court has affirmed our efforts to stop the trading of influence and access for huge, unregulated contributions from corporations and special interests."
Supporters of the bill worried that the restrictions on TV ads might be struck down on First Amendment grounds.
Instead, they were vindicated by a ruling that "made crystal clear that there is no constitutional bar to passing reasonable, common-sense campaign finance reform legislation," said Scott Harshbarger, president of Common Cause. "The Democrats got hoisted on their petard. They wanted to take credit for reform, but they didn't want the effects of reform."
Glen Shor, counsel for the nonpartisan Campaign Legal Center who worked on the bill as a former Meehan staffer, said the battle came down to members in both parties who cast "courageous votes."
"Probably there was some nervousness about the consequences, but others realized that it was the right thing to do," Shor said. "All their votes are vindicated by the decision."
source: http://www.boston.com/news/nation/articles/2003/12/11/for_advocates_a_long_journey?mode=PF 11dec03
WASHINGTON—With almost ruthless efficiency, the gears of the capital's money culture had already shifted in response to the latest campaign finance laws, so the winners and losers in yesterday's landmark US Supreme Court decision were easy to decipher, according to those involved in political fund-raising.
Groups of high-income donors, such as law firms, are big winners, observers said. Wealthy individual donors are not.
Independent groups supporting grass-roots organizing are winners. The traditional party apparatus is not.
Issues ads are likely to become more prevalent. Independently funded ads attacking candidates are not.
And while the strictures of the McCain-Feingold law may have stung when they took effect last year, many in the fund-raising community said they have become acclimated to the law and are happy to be able to proceed without further changes.
"We're just going to keep on doing what we're doing," said Lorraine Voles, spokeswoman for America Coming Together, a liberal grass-roots organizing group, which sprang up in the wake of the campaign finance changes.
When the law took effect last year, most observers believed its central provision, a ban on unlimited donations to the parties, would play to Republicans' advantage, because the Democrats used unlimited "soft money" to help offset a GOP edge in traditional fund-raising.
That ban, with other key provisions, was upheld yesterday.
But groups like America Coming Together and the Media Fund, founded by former Clinton aide Harold Ickes, are now poised to collect large donations that might otherwise have gone to the Democratic National Committee. Those groups will take over some of the organizing and advertising that the party once funded.
Many Democrats pointed to the apparent irony that former Vermont governor Howard Dean and retired General Wesley K. Clark have opened a rich new vein of smaller contributions via the Internet at just the moment that large contributions are coming under greater regulation.
"The move away from soft money is healthy for the Democrats," said US Representative Martin T. Meehan, Democrat of Massachusetts, a cosponsor of the law. "Candidates like Howard Dean have shown you can use the Internet [and] do grass-roots fund-raising" to collect as much money as would have come from big donors.
Dean leads all Democratic aspirants, having collected $25 million through October.
The next-highest fund-raiser, Senator John F. Kerry of Massachusetts, has collected $16 million, excluding transfers from his Senate campaign committee.
To help offset the ban on unlimited donations to parties, McCain-Feingold doubled the maximum amount individuals can give to presidential or congressional candidates, to $2,000. In practice, the greatest advantage goes to those who can round up 100 or more well-off people to write checks for the maximum amount.
President Bush's campaign has given those people a special designation—Rangers—and offered them special access to the president.
Often, those people are lawyers or businesspeople with a cadre of like-minded colleagues to gather together for a fund-raiser.
While Bush has collected the most of any candidate by far—$84 million, as of October—some Democrats have also used their own versions of the "Ranger" concept.
North Carolina Senator John Edwards, a former trial attorney, has benefited from a string of maximum-contribution fund-raisers organized by fellow attorneys around the country.
In 2004, the focus of the campaign finance changes will be the presidential race, but some observers believe the changes will be even more strongly felt in the Senate and House races.
That's where the national parties exert their greatest influence, transferring money to the most promising challengers.
The parties will still be active, but probably less so. For the 2002 congressional elections, each party raised about $250 million in "soft money." None will be available this time.
Limited to regular donations only, the Democrats have raised $75 million in the first 10 months of this year. The Republicans lead with $173 million, though Democratic National Committee Chairman Terry McAuliffe yesterday vowed to close the gap. Channeling "soft money" into independent groups like Ickes' Media Fund could further erode the GOP advantage.
House and Senate races are also where special-interest groups have been most active in targeting candidates, pouring money into ads that are often far more negative than those aired by the candidates themselves.
The new law bans such ads within 30 days of a primary and 60 days of a general election.
In Massachusetts, viewers may find the reduction in negative ads to be the most noticeable effect of the campaign finance changes, because the state has its own soft-money ban.
But state Democratic Party chairman Phil Johnston suggested the advertising ban might argue for moving the state's primary elections earlier in the season. Currently, House and Senate candidates are nominated in September, meaning the 60-day ban on interest-group advertising would be running by the time the contenders are chosen.
Interest groups would have no chance to broadcast their preferences.
Former state attorney general Scott Harshbarger, the 1998 Democratic gubernatorial nominee in Massachusetts, said he hoped the Legislature would opt for an earlier primary as well.
"It would probably be good policy anyway," Harshbarger said. "If you push back the primary, you have a longer election period."
source: http://www.boston.com/news/nation/articles/2003/12/11/a_money_culture_adapts_and_carries_on?mode=PF 11dec03
WASHINGTON-Political interest groups said they were stunned and disappointed that the US Supreme Court upheld restrictions on certain campaign-season advertising, and they vowed to find other outlets to exercise their First Amendment right to free speech.
"Prohibiting the use of TV and radio ads in the days and weeks right before an election will blindfold voters just as they are interested in learning about the candidates and the issues," said Thomas Donohue, president of the US Chamber of Commerce. "This decision is a disappointing step back toward less information, fewer options, and restricted speech."
The Chamber of Commerce was part of an unusual alignment of groups, from the AFL-CIO to the American Civil Liberties Union, petitioning the court to strike down the advertising ban in the 2002 Bipartisan Campaign Reform Act. Donohue said the chamber, the nation's largest business federation, would now turn to phone banks, direct mail, local candidate forums, and meetings to promote probusiness policies and candidates during the 2004 election.
By 5-4 majorities, the high court affirmed the law's bans on both political parties raising unregulated "soft money" and on corporations and unions using general treasury funds, as well as advocacy groups that get their support from businesses and unions, to buy broadcast ads that name or picture federal candidates within 30 days of a primary and 60 days of a general election.
The law aimed to eliminate so-called sham issue ads that target certain candidates close to an election and are paid with unregulated funds. It still allows advocacy advertising at any time in the campaign as long as political action committees pay for it. Such committees may collect individual donations limited to $5,000 per election cycle and must register and disclose contributors to the Federal Election Commission.
Larry Noble, executive director of the Center for Responsive Politics, a campaign-finance watchdog group, said the court majority put Congress's concerns about corruption ahead of the interest groups' free-speech argument.
"It was a sweeping decision. The court really looked at what what was going on in the political world and thought Congress had the authority to rein in so-called issue ads that were really campaign ads," Noble said.
Noble said "a tremendous amount of room" remains for advocacy groups to get their messages out. They also can advertise on issues at any point in an election cycle, as long as they do not name or picture a candidate.
"The reality is that with the banning of soft money to the parties, we already are seeing a lot of that money to go to so-called issue groups, and they are benefiting from it," he said.
The AFL-CIO, whose general counsel argued the case before the high court, was studying the decision yesterday to see what impact it would have on its $35 million election mobilization in 2004, said Karen Ackerman, the federation's political director. Ackerman called the ruling disappointing and said "it strikes at the right of union members to be engaged in the political process and make their voices heard."
The National Rifle Association will not be stopped by the Supreme Court, Congress, or the "Washington elite" from getting the truth to the public, Wayne LaPierre, the NRA's executive vice president, pledged yesterday.
He said the NRA will expand its news operation, which includes a monthly magazine and Internet newscasts, to become a "media outlet" to get around the advertising ban. The NRA spent an estimated $20 million to inform voters and influence the outcome of campaigns in 2000.
"The politicians may not like to be criticized with TV and radio ads, but ultimately they are not going to be able to pull off silencing us," LaPierre said. "The 4 million members of the NRA will be heard."
The ACLU never endorses candidates, but now it risks criminal prosecution if it broadcasts an ad about candidates' positions on civil liberties issues, said Anthony D. Romero, the ACLU's executive director.
"This notion that the government can tell an organization like the ACLU when and how it should address important civil liberties issues is a form of censorship masquerading as campaign-finance reform," said Romero, who called the Supreme Court action "extremely disappointing."
Jan LaRue, chief counsel of Concerned Women for America, an advocacy group for social conservatives, called the ruling "amazing" and "aberrant." "The very kind of speech that the First Amendment was meant to protect has less protection than pornography," LaRue said. "This is going to make a lot of lawyers really rich, because every effort will be made to find loopholes, to do whatever you can to get around it."
Legal analysts agreed yesterday that the Supreme Court's sharply divided opinion was not the last word on the campaign-finance law.
"Saying the statute, as written, was largely constitutional does not mean that as applied, it will never infringe on people's rights," said Cassandra F. Lentchner, who practices election law with the Washington firm of Perkins Coie LLP.
source: http://www.boston.com/news/nation/articles/2003/12/11/outcome_stuns_nra_aclu?mode=PF 11dec03
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