Showdown over money in politics
In rare summer session, Supreme Court Monday takes up issue of 'soft money,' which may reshape campaigning.
Competing visions of the role of money in American politics are at the center of a showdown over campaign-finance reform at the US Supreme Court Monday.
On one side are campaign-finance reform advocates who view the influx of hundreds of millions of dollars in unregulated "soft money" into the election system as a corrupting influence upon the democratic process. On the other side, free-speech advocates say money is a means of ensuring that one's voice may be heard on matters of important national debate. Attempts to muzzle election-related speech undermine, rather than enhance, democracy, they say.
The case has all the markings of a potential landmark. The high court agreed to a special four hours of oral argument, to take place in the midst of its summer recess. Virtually every significant campaign-finance lawyer is involved. Twenty-two friend-of-the-court briefs have been filed.
In addition, the case comes only 14 months before the next presidential election, setting the stage for potential mid-campaign chaos depending on the timing and extent of the court's ruling.
"It is shaping up to be the most important campaign-finance case since Buckley v. Valeo," says Richard Hasen, an election-law expert and professor at Loyola Law School in Los Angeles, referring to the 1976 precedent that upheld campaign contribution limits but struck down spending limits.
The justices are set to examine whether Congress overstepped its powers under the Constitution when it enacted the McCain-Feingold campaign-finance reform law last year.
The law, also known as the Bipartisan Campaign Reform Act of 2002, bans the use of so-called soft money - unlimited donations to the political parties from corporations, unions, and wealthy special interests to influence the outcome of federal elections. It also restricts independent "issue" advertisements broadcast during election season.
More than 80 individuals and groups - including both major political parties - filed suit seeking to overturn the law. An array of reform advocates urged that it be upheld. A federal court panel in May upheld parts of the law and struck down others. But that decision has been stayed - allowing the law to remain in full effect pending Supreme Court review.
It is now up to the nine Supreme Court justices to settle the issue. However the case is resolved, the result will have a profound impact on how federal campaigns will be run and financed.
Analysts say the court itself is split on the issue. They say decisive swing votes could come from Chief Justice William Rehnquist and/or Justice Sandra Day O'Connor.
Campaign-finance reform supporters have long argued that large soft-money contributions undermine public confidence in the election process by giving the impression that wealthy special interests are buying influence. "Congress has the undoubted power and responsibility to safeguard the integrity of federal elections and to prevent actual or apparent corruption of federal office holders," says Solicitor General Theodore Olson in his brief to the court urging the law be upheld.
Opponents of the law say reform advocates are attempting to control too much of the election process. "Defendants' submissions positively bristle with hostility toward any role for money in politics - and therefore toward the speech that money indisputably enables," says Kenneth Starr in his brief urging that the law be overturned.
The reform law threatens to undermine the nation's "unrivaled constitutional commitment to robust and uninhibited debate," Mr. Starr says. "That debate sometimes may be unpleasant and undignified, but never is it unprotected."
Opponents of the law also argue that a federal mandate banning soft-money donations to state-level political parties violates principles of federalism.
The McCain-Feingold law, named for its primary sponsors Sen. Russell Feingold (D) of Wisconsin and Sen. John McCain (R) of Arizona, took effect in November 2002.
It came after six years of study and debate in Congress. Lawmakers had watched during the past two decades as soft money played a larger and larger role in election finance. National political-party receipts of soft money rose from $19 million in 1980 to $86 million in 1992. By 2002, soft-money receipts totaled $496 million.
Soft-money contributions were originally accepted solely to fund local and state party-building efforts, including get-out-the-vote campaigns. But increasingly, the money was diverted to expenditures aimed at influencing the outcome of federal elections. "The soft money system grew over time into nothing less than a massive scheme for circumventing the contribution limits and source prohibitions of the federal campaign finance laws," says Donald Simon in a friend-of-the-court brief on behalf of Common Cause and AARP.
Others say there is no danger in such contributions since they are made to parties rather than candidates or incumbent officeholders. "There is no provision that we have challenged that involves contributions to candidates," says James Bopp, who filed a friend-of-the-court brief on behalf of the National Right to Life Committee and other groups seeking to strike down the law. "If the concern is corrupting federal candidates, it is far-fetched to say that lawfully raised state money not contributed to any federal candidate will corrupt a federal candidate or officeholder."
Reform advocates say that rather than insulating candidates from wealthy contributors, the parties actually facilitate contact between soft-money donors and the federal candidates who benefit.
In addition to banning the use of soft money in federal elections, the McCain-Feingold law also seeks to restrict the running of independent-issue advertisements that mention any candidate by name 30 days prior to a primary election and 60 days prior to a general election.
Supporters of the law say it is necessary to prevent corporations and unions from using money to flood airwaves with thinly disguised campaign ads in the crucial days prior to an election. Organizations may run campaign ads during election season, provided the ads are funded through the contributions of individuals and include public disclosure of the sources of funding.
Opponents see the ad provisions as impermissible censorship. "The Supreme Court in a series of cases has held that citizens' ability to criticize public officials is sacrosanct under the First Amendment," says Mr. Bopp.