"This is certainly the most important campaign finance case of the last generation, taking us back to (Supreme Court case) Buckley v. Vallejo," Kenneth Starr, a lead attorney in the challenge of the McCain-Feingold law, said during a debate at the Washington, D.C. offices of the conservative Hudson Institute. "It is more important than Buckley."
The event was co-sponsored by the think tank and Common Cause, an advocacy group that has been a major supporter of the law.
Earlier this month, a special three judge federal panel was convened to hear a challenge of the constitutionality of two major portions of the new McCain-Feingold law.
At the center of the case, McConnell v. Federal Election Commission, are two issues: the constitutionality of the law's ban on the collection of so-called soft money -- unlimited contributions to the national political parties for "party-building" activities; and restrictions banning the use of advocacy advertisements - which criticize or support a candidate's position on an issue but do not advocate his defeat or election -- for 30 days prior to a primary election for federal office, and 60 days prior to the general election.
The opposing sides in the case hold very different views of the potential impact of the law.
While Starr and other opponents see the law as a fundamentally negative restructuring of the campaign finance regulations, supporters see it as a positive attempt to conform federal elections to the intent of the regulations established in the seminal Buckley v. Vallejo decision.
Under that case, the Supreme Court said that Congress could address problems of corruption in the election system, but only through narrowly tailored laws that target specific problems.
Thomas Mann, a senior fellow in governance studies at the Brookings Institution, said there is a long history in the United States of laws that regulate federal elections laws -- from the first such laws in 1907 through the Federal Election Campaign Act of 1974 -- that establish restrictions on disclosure and the sources of contributions.
Mann said that it took the creativity of President Bill Clinton and his top political advisor Dick Morris in 1995 to show what could be accomplished in a campaign with issue advocacy ads and soft money. He noted that the resulting onslaught of such ads has become central to elections, especially in races key to control of Congress, while the soft money spent on them has increased dramatically. He added that this is a perversion of the law as envisioned by the Supreme Court in Buckley.
"I think this is mainly an incremental bill, not a dramatic departure," said Mann. "It gets us back to where we were ... to a period in the 1970s and 1980s where (political) parties were working very well, before soft money."
But according to opponents, the problem with McCain-Feingold is that its restrictions do not meet the narrow requirements established under Buckley.
"It (McCain-Feingold) really is an attempt to ambitiously reorder the political system in the United States," said Starr, adding that it is unconstitutional because it is an attempt by Congress to regulate political activity, at even the most local level, in non-specific ways.
He pointed to Democratic Party issue ads that ran in 1996 against proposition 209 -- a referendum that would have banned affirmative action in state and public entities -- as an example of how the federal restrictions would affect state-level voting issues. Such ads would be illegal past the 30-day and 60-day threshold under the McCain-Feingold law because they could have affect voter turnout for the federal election.
But Trevor Potter, former Chairman of the Federal Election Commission and now a lawyer at the firm of Caplin & Drysdale, said that the overarching law established in the Buckley case provides that Congress can regulate campaign finance law if there is corruption or the appearance of corruption.
"Congress only has enumerated powers, but one of those is to regulate the time and place and manner of federal elections," he said. "I would argue that what Congress has just done is not to radically restructure the system ... but what Congress has done is to go back to the Supreme Court and close the loopholes in the law upheld by the court in Buckley."
For instance, he said that large donations of soft money corrupt the election system, such as in cases where party chairmen have asked representatives or senators to back off of issues after large donations were made to the party by sources who opposed those issues. Another example of this phenomenon was the donation of $80,000 given to the Democratic party by Denise Rich, the ex-wife of fugitive financier. Marc Rich's. The donation got her face time with President Clinton so she could beg the president to pardon her husband just before he left office.
"There is documented evidence supporting this case," Potter said, noting testimony by party officials in the current case under review.
The other major issue is the question of regulating issue advocacy ads.
According to Larry Gold, associate special counsel for the AFL-CIO and another lead attorney in the challenge of the law, the restriction on issue ads is an overreaching attempt to make something illegal because it could have a negative impact, not because it definitely does.
But critics of his group's legal challenge, like Mann and Potter, say that organizations like AFL-CIO, corporations, or other groups could still place issue ads, but that they would have to be funded through their political action committees with heavily regulated and harder-to-raise hard money dollar donations, and just could not run not close to election day.
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