Court Faces Stark Choice on McCain-Feingold

September 16, 2003

This article was also published in the Boston Globe on September 17, 2003 under the title “Clarity Needed on Campaign Law”

After an extraordinary four-hour oral argument on Sept. 8, the Supreme Court justices retreated to deliberate on the constitutionality of the Bipartisan Campaign Reform Act of 2002. Their decision will confront our democracy with one of two futures: a continuing, necessarily imperfect effort to limit the troublesome ways in which money distorts elections and public policy making or a return to a 19th-century state of nature in which anything short of bribery or extortion goes.

This stark choice was lost in the oral argument before the court and in the commentary that followed. But it flows inexorably both from unrefuted findings about current campaign finance practices the justices appeared to accept and from the competing views of how the Constitution limits congressional regulation in this critical arena of democratic politics.

While Justice O’Connor and Chief Justice Rehnquist may well be the swing voters in the middle of two opposing blocs of their colleagues, there is no middle ground. Either the court will affirm the ability of Congress to allow application of principles long embedded in statutes and court decisions or it will effectively repeal a century of precedent, leaving an unregulated system in its wake.

Consider first the unchallenged findings about campaign finance prior to the passage of the campaign finance law. The “express advocacy” standard formulated by the 1976 Buckley v. Valeo decision defining which independent expenditures are properly subject to regulation is irrelevant to present-day campaigns. Justice Kennedy appeared to speak for the entire court when he cited the lower court’s finding that the distinction between express advocacy and issue advocacy near the election is meaningless. Virtually all campaign ads avoid using words expressly advocating the election or defeat of a candidate. Corporations and unions drew on their treasury funds, contrary to the law, to sponsor issue ads and to make large contributions to the parties in order to influence federal elections. Political parties raised and spent hundreds of millions in soft money dollars to try to win federal elections, even though the law restricted these funds to state and local elections. Federal elected officials, who directly control four of the six national party committees and dominate the other two, used these committees and affiliated state party organizations to raise and spend soft money for federal election campaigns. Soft-money fund-raising by political parties facilitated access by large donors to elected officials.

This set of practices — which effectively gutted contribution source and size restrictions and weakened the disclosure regime — was the basis for Congress enacting the new campaign finance law. The court appears to accept this basis for action. The question is whether a majority of justices will conclude that the remedies adopted by Congress are constitutional.

Justices Scalia and Thomas have made no secret of their view that there is no compelling constitutional basis for regulating money in elections. Justice Kennedy appears close to that camp. These justices would strike down the law and much if not all of the campaign finance law that preceded it, including prohibitions on corporate and union financing of federal election activity. Deregulation of campaign finance is a principled position, one embraced by many of the plaintiffs in McConnell v. Federal Election Commission, and by their prominent attorneys Kenneth Starr, Floyd Abrams, and Kathleen Sullivan. Deregulation supporters usually couple it with disclosure, but effective transparency is impossible to achieve without a rigorous regulatory scheme specifying what must be disclosed. Congress has repeatedly rejected the “deregulate and disclose” alternative, and the public has shown no appetite for it.

A rejection of the new campaign finance law by the court would effectively establish an unregulated campaign finance regime in America. It would render the ban on corporate and union treasury financing of contributions and expenditures in federal elections completely unenforceable. By restoring parties as funding conduits, such a ruling would remove all limits on what wealthy individuals can contribute to federal candidates. And by exempting much campaign activity from full disclosure, it would render transparency a weak and ineffectual tool for disciplining the role of money in politics.

Congress made a good-faith effort to repair the campaign finance system within the constitutional framework articulated in Buckley and subsequent cases. At least four justices (Breyer, Ginsburg, Souter, and Stevens) appear ready to affirm the constitutionality of that effort. I hope Justices O’Connor and Rehnquist join them. If they don’t, they should acknowledge openly what they are doing by explicitly overturning Buckley, repudiating the laws enacted in the last century, and announcing an era of deregulation of campaign finance. Simply ruling the reform act unconstitutional would restore a regime in which the plain meaning of the law is openly and routinely flouted by political actors. That is a recipe for public cynicism and a loss of legitimacy for American democracy.