Court of last resort for altering fund-raising?
If Supreme Court takes new cases, it may signal justices' desire to review groundwork for how politicians raise and spend money.
Remember the Lincoln Bedroom controversy? How about Al Gore raising funds in a Buddhist temple? Or Chinese agents seeking to buy influence among American politicians?
A distant memory, all.
After what the nation's been through this year with Monica Lewinsky, it is hard to imagine a mere campaign-finance scandal eliciting anything more than a protracted yawn.
Here's proof: The election money fiasco of 1996 wasn't enough to motivate Congress to pass even a watered-down reform package two years later. And Attorney General Janet Reno, mired in arcane election-law legalese, seems perpetually reluctant to appoint a special counsel to get to the bottom of questionable White House and congressional fund-raising.
But campaign-finance reform isn't dead. It's simply taking a different route through Washington.
Now it is the US Supreme Court's turn. The justices are considering taking up two cases that could facilitate a rewrite of its landmark decision of 1976 that laid the groundwork for the way politicians raise and spend campaign money.
An announcement of whether the court will hear one, both, or none of the cases is expected soon, perhaps as early as today.
One case is a Cincinnati ordinance that limits to $140,000 the amount a city council candidate can spend in a campaign. The other is an Arkansas state law that restricts donors from contributing more than $300 to a statewide candidate and $100 to a local candidate. Both laws were struck down as unconstitutional by federal appeals courts.
What both laws were attempting to do, in different ways, was limit the potential influence of special-interest money on candidates and elected officials.
Free speech violation?
But appeals court judges decided they went too far, abridging the free-speech rights of candidates to spend as much as they want to win election in Cincinnati, or violating the rights of contributors in Arkansas to support their candidates with large political contributions.
"There are going to be times when people can't get their views across unless they step up and put their money where their mouth is. What's wrong with that?" asks Bob Smith, the Little Rock lawyer who successfully challenged the Arkansas law and is urging the Supreme Court not to take his case.
"Telling people that they can't spend money for their own candidacy is telling them that they can't campaign on their own behalf, and that is the clearest violation of the First Amendment imaginable," says Michael Carvin, a Washington lawyer who is urging the high court to allow the appeals decision in the Cincinnati case to stand.
The appeals courts went too far in both cases, reform advocates say. Restrictions imposed by appeals panels in the sixth and 10th circuits have significantly eroded the ability of state and local officials to enact meaningful campaign-finance reform, they charge.
In the absence of campaign contribution and/or spending limits, the process turns into a free-for-all with the spoils going to the highest bidder without regard to the best-qualified candidate, advocates say. In addition, candidates waste valuable time raising money when they could be performing their official duties.
"It is an unlimited money chase," says John Bonifaz, executive director of the National Voting Rights Institute in Boston, who is asking the justices to review the Cincinnati case.
Future of campaign finance
If the high court declines to hear the cases, the appeals court decisions would stand. Such an outcome would bar states and cities in those circuits from adopting similar campaign-finance reform plans. Reformers would then have to wait for other cases to work their way to the Supreme Court.
But if at least four justices agree to examine the issue, some court watchers say it could pave the way for the most important decision of this term, the overhaul of a 22-year precedent known as Buckley v. Valeo.
That would mark an extraordinary moment in court history, with a majority of justices able to negotiate their way into the heart of a legal minefield that has confounded both Congress and the White House for years.
The justices enjoy a significant advantage over their co-equal partners in government. As lifetime appointees, they do not have to solicit campaign contributions, endure the pressure of waging a reelection battle on a shoestring budget, or face the prospect of finding significant amounts of cash to run last-minute smear ads on TV in a struggle to keep their jobs.
The justices' primary concern is striking the correct balance between government efforts to ensure broad public confidence in the democratic process and the protection of free-speech rights of candidates, their financial supporters, and voters.
Where the court will come down remains unclear. But opinions abound. "There is a critical mass on the court that is ready to reexamine the constitutional landscape that Buckley created," says E. Joshua Rosenkranz, executive director of the Brennan Center for Justice at New York University's School of Law.
Some analysts say the key will be how three apparent swing votes, Justices Sandra Day O'Connor, Stephen Breyer, and David Souter, view the cases. If they side with Justices John Paul Stevens and Ruth Bader Ginsburg, it could mean a new, more accommodating standard for campaign-finance reform around the nation.
If they side with Justices Clarence Thomas, Antonin Scalia, and William Rehnquist, it would likely result in a more restrictive approach for would-be reformers.
"That is a risk worth taking," says Nancy Northop, also of the Brennan Center, which is urging the court to take up the Arkansas case. "The current system [of campaign finance] is not working and reformers need to know they can move toward a more effective system. Or we can go back to the drawing board if the court goes the other way."
"This is not the only campaign-finance reform out there," says Brian Brooks, an assistant attorney general seeking reinstatement of the Arkansas contribution limits. "Everyone is looking for guidance from the court."