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Analyisis: Court upholds soft money ban

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent   |   Dec. 10, 2003 at 12:44 PM   |   Comments

WASHINGTON, Dec. 10 (UPI) -- A sharply divided Supreme Court largely upheld the 2002 Bipartisan Campaign Reform Act Wednesday, including the ban on "soft" money in federal elections.

The 5-4 ruling means there will be no upheaval in political fundraising just as the 2004 presidential election begins to pick up steam. Parties have been raising money under the BCRA regime since its implementation last year, and that practice will continue.

Though he did not support it, the victory for what is generally known as the "McCain-Feingold" law is also a clear victory for President George W. Bush and his party. Most congressional Democrats, with some exceptions, supported the law. Most congressional Republicans, again with some exceptions, did not.

However, Republicans have been much more successful than Democrats in raising money in the small individual amounts required under the new law.

The massive federal law contains a number of elements, all of which were upheld by the Supreme Court, Chief Justice William Rehnquist said, except for restrictions on contributions from minors; and a new requirement that political parties must choose between making independent or coordinated expenditures on behalf of their federal candidates.

The 2002 Bipartisan Campaign Reform Act amends the 1971 Federal Election Campaign Act and plugs the soft-money loophole and regulates campaign ads that influence a campaign. Such ads must now be financed with money subject to federal restrictions and are counted against a party's expenditures.

The nine-member Supreme Court filed at least that many opinions Wednesday to form the decision that supports BCRA. The opinions took up 300 pages.

Justices John Paul Stevens and Sandra Day O'Connor, a liberal and a moderate conservative, shared authorship of the central court's decision on the soft money ban.

The decision said the provision of BCRA, which forbids national party committees and their agents to "solicit, receive ... direct ... or spend any funds ... that are not subject to (FECA's) limitations, prohibitions and reporting requirements" does not violate the First Amendment.

"Soft" money is unregulated and not subject to FECA.

However, even under the old regime, "soft" money was not allowed to be used directly in federal elections. Supposedly, it could only be used for general purposes such as "party-building" activities -- such as registration drives and "issue" advertising.

"Hard" money was subject to FECA's strict reporting provisions and its strict limitations on contributions. Under the old FECA regime, individual contributions could not exceed $1,000 in an election cycle.

In reality, both major parties had become expert in blurring the lines between "hard" and "soft" money, and politicians, corporations, unions and individuals were spending tens of millions of dollars in "soft" money -- money which wasn't affected by contribution limits or other FEC restrictions -- to indirectly affect the outcome of elections.

The Justice Department estimates "soft" money donations increased dramatically in the last several elections. The department told the Supreme Court earlier that the national parties spent $80 million in "soft" money in 1992, $272 million in 1996 and $498 million in 2000.

Wednesday, the Supreme Court also upheld BCRA's regulation of "electioneering communications," saying it was not a First Amendment violation.

The court said BCRA's restrictions are not constitutionally overbroad because they subject all funds raised and spent by national parties to FECA's "hard" money source and amount limits, including funds spent on purely state and local elections.

A court majority also rejected argument that the ban on "soft" money contributions is overbroad, ruling that the ban applies only to national party committees and party officers acting in their official capacities. The committees themselves remain free to solicit "hard" money on their own behalf, or on behalf of state and local committees and candidates.

But the majority said nothing in the law prevents national committee officials from sitting down with state and local party officials or candidates to advise them on how to raise or spend "soft" money.

The majority also upheld "soft" money restrictions on minor parties.

In their opinion, Stevens and O'Connor said the increasing use of "soft" money in federal elections tightened the connection between corporate donors, who are not allowed to make "hard" donations, and the parties.

"Such practices corroborate evidence indicating that many corporate contributions were motivated by a desire for access to candidates and a fear of being placed at a disadvantage in the legislative process relative to other contributors," the justices said, "rather than by ideological support for the candidates and parties.

"Not only were such soft-money contributions often designed to gain access to federal candidates," they continued, "but they were in many cases solicited by the candidates themselves. ... For example, a federal legislator running for re-election solicited soft money from a supporter by advising him that even though he had already 'contributed the legal maximum' to the campaign committee, he could still make an additional contribution to a joint program supporting federal state and local candidates of his party. Such solicitations were not uncommon."

As for "campaign electioneering," FECA originally did not require disclosure of the money source for so-called issue ads, the justices said, and "sponsors of such ads often used misleading names to conceal their identity. 'Citizens for Better Medicare,' for instance, was not a grassroots organization of citizens, as its name might suggest, but was instead a platform for an association of drug manufacturers. And 'Republicans for Clean Air,' which ran ads in the 2000 Republican presidential primary, was actually an organization consisting of just two individuals -- brothers who together spent $25 million on ads supporting their favored candidate."

The brothers were supporting then-Texas Gov. Bush against Sen. John McCain, R-Ariz., a principal BCRA sponsor.

BCRA's Title II "primarily prevents corporations and labor unions from using general treasury funds for communications that are intended to, or have the effect of, influencing the outcome of federal elections." Title II is not constitutionally overbroad, the justices said.

Stevens and O'Connor were joined in their opinion by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. All are liberals, except for moderate conservative O'Connor, who once again provided the swing vote in a landmark case.

The 300 pages that include the decision also contain opinions from Rehnquist, Breyer and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas. Some of those opinions form the decisions on minor elements of BCRA.

Most of the justices signed on to some elements of the judgment and dissented in others.

Wednesday's decision upholds some elements and reverses others in a 1,700-page decision handed down by a three-judge trial court in May. The trial-court ruling struck down BCRA's core in a 2-1 vote, but was appealed directly to the Supreme Court.

The legal attacks against BCRA were mounted by individuals and groups from across the political spectrum -- from Sen. Mitch McConnell, R-Ky., to the American Civil Liberties Union; from the National Rifle Association to the AFL-CIO; and from the Republican National Committee to the Democratic Party of California.

--

(No. 02-1674, McConnell et al vs. FEC et al; and etc.)

© 2003 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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