Separating Myth From Reality in McConnell v. FEC

Norman J. Ornstein and Thomas E. Mann

For those of us who had the good fortune to view up close the entire seven-year odyssey of BCRA — from the initial formulation of a drastically-revised McCain-Feingold bill to the defense of the new law in the courts — it was especially heartening to see the Court recognize the care the bill’s authors took to craft constitutional means to achieve a limited set of policy ends. While many critics of the new law see an ambitious and threatening departure in campaign finance regulation and jurisprudence, we are comforted by the Court’s recognition that Congress took measured and considered steps to restore the FECA regime affirmed by Buckley that was undermined in recent years by the rise of party soft money and the explosion of electioneering in the guise of issue advocacy.

The majority opinion is notable for its reliance on the evidentiary record assembled by Congress and BCRA’s defendants and its refreshingly pragmatic view of money and politics. That record painted a vivid portrait of a campaign finance law gamed by political actors beyond recognition to the detriment of the integrity of the political process. The Thompson Committee report provided a particularly rich lode of evidence for the Court. Much of that record was not even challenged by the dissenting justices. For example, the Chief Justice acknowledged that party soft money was created by a series of administrative rulings by the Federal Election Commission. And all of the justices appeared to accept as obviously true a point sharply contested by the plaintiffs — that issue ads broadcast near an election are designed to elect or defeat candidates.

Given the willingness of the Court to strike down congressional enactments in recent years, the deference to Congress expressed throughout the majority opinion is striking. The Court acknowledged “that in its lengthy deliberations leading to the enactment of BCRA, Congress properly relied on the recognition of its authority contained in Buckley and its progeny.” Critics see the Court as failing in its responsibility to hold Congress to a high constitutional standard, particularly insofar as BCRA might be construed to abridge First Amendment freedoms. We see a Court properly recognizing the limited and necessary steps taken by Congress to address a well-documented set of problems in campaign finance and intelligently clarifying the constitutional space within which it may do so.

As political scientists rather than lawyers, we may insufficiently appreciate the doctrinal challenges being raised against the Court’s decision. But in considering four crucial elements of the decision, we find the Court’s reasoning persuasive.

The article is published in (and republished here with the permission of) the Election Law Journal‘s ( special symposium issue on McConnell v. FEC, Volume 3, Issue 2 (March 2004).