Defining irony, the National Rifle Association, National Right to Life Committee, American Civil Liberties Union and the AFL-CIO are joined in a constitutional battle against the campaign finance bill Congress passed last year. In order for such popular but nonhomogeneous organizations to all be fighting against the same bill, they must be entertaining legitimate beefs with the bill’s provisions.
Last week, the Supreme Court heard oral arguments in the case, McConnell v. Federal Election Commission. In perhaps an unprecedented coalition, more than 80 plaintiffs are challenging numerous provisions of the Bipartisan Campaign Reform Act, also coined the McCain-Feingold bill.
While there are positive provisions of the bill, there are also many parts that infringe the speech and association rights of individuals and organizations, some being more problematic than others. Many of the plaintiffs’ numerous and complex contentions merit constitutional scrutiny.
Despite giving the bill expeditious review, the Supreme Court’s decision will be difficult and time-consuming. If its opinion reflects that of the District of Columbia U.S. Circuit Court of Appeals, it will likely pare much of the law. The appeals court’s three-member panel struck down nine provisions of the act in a 1,600-page decision last May.
The McCain-Feingold bill places more regulations on soft money, bans certain “issue ads” before elections, broadens donor disclosure and closes the federal loophole that allows unfettered contributions to political parties. Supporters say the bill will reduce campaign corruption and the influence of big money and interest groups on elections.
The following are some of the bill’s contents that are objected to.
It bans minors from contributing to political parties.
Provisions tighten the regulation of interest groups’ political action money spent in coordination with candidates. The Christian Coalition believes this could make voter guide distribution illegal because it interacts with candidates in producing the voter guides.
Donor contributions to candidates previously capped at $2,000 are now limited to $4,000.
Only limited and fully disclosed money can pay for “issue ads” aired within 30 days before a primary or 60 days before an election. Special interest groups would, therefore, have to start organizations similar to political action committees and have to abide by the same regulations placed on political campaigns.
Previously, corporations and labor unions (not their political action committees) couldn’t give to candidates, but they could donate to parties. Also, certain donations were capped to campaigns, but not parties. Political parties were allowed to spend these funds on loosely defined “party building” activities, thereby still funding much support for campaigns. The bill bans corporate and labor donations and limits other contributions to parties.
Restrictions on corporate and labor union donations to political parties have merit and a good chance of standing judicial review. However, the bans on “issue ads,” and the limitations on contributions given to political parties violate free speech and the right of association; they are likely be struck. The remaining previously listed issues are toss-ups.
In the past, the Supreme Court allowed restrictions to campaigns because they felt such donations could corrupt a politician but maintained that parties had a right of association and therefore should not have these same restrictions. In 1976, the Supreme Court also held that regulating noncampaign money independently spent on behalf of the candidate violated free speech. However, speech and association rights are not granted to corporations and labor unions because they can be subject to government campaign laws, because they receive special legal privileges.
The Supreme Court should not waver from these previously held decisions and should strike down the provisions of the bill that violate speech and association rights.
We understand the need to stop political corruption. Also, the law is intent on reducing the importance of big money in elections, which is great. But while these are noble goals, the campaign finance bill teeters on the edge of unconstitutionality.
The act limits free speech in its attempt to improve elections and democracy. During the debate, Justice Antonin Scalia, noting the First Amendment’s provision of freedom of speech, asked, “How is there any way around that?” His point is fair and justified. We hope the rest of the justices give serious consideration to Scalia’s question.