Analysis: Playing hardball on 'soft' money

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  Aug. 19, 2003 at 11:21 AM
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WASHINGTON, Aug. 19 (UPI) -- The most prominent public interest groups in American society have chosen sides in the upcoming Supreme Court argument on the ban against "soft" money in federal elections.

Politics indeed makes for the strangest of bedfellows, but there's logic behind this madness.

The case will determine how funds are raised for federal elections, and by extension, could help determine the next president of the United States.

The ban was passed in 2002 with overwhelming Democratic support in Congress, and in the face of intense Republican opposition. There were exceptions of course, with some Republicans joining Democrats to form a congressional majority. In fact, the driving force behind the ban was its principal sponsor, Sen. John McCain, R-Ariz.

President George W. Bush publicly opposed the ban, but reluctantly signed it into law rather than face the political heat.

However, the after effects of the law's implementation have been anything but favorable to the Democrats, who as it turned out were expert in raising "soft" funds from big donors, but not so adept as Bush and the Republicans at raising "hard" money in the $2,000 increments that can be used directly in an election.

Many analysts say unless the ban is struck down as unconstitutional, the Democrats will have a hard time remaining competitive with the Republicans in raising the money it takes to recapture the White House and regaining control of Congress -- money being the mother's milk of politics.

The Supreme Court hears an unusual four hours of argument on the constitutionality of the Bipartisan Campaign Reform Act on Sept. 8. The justices were forced to hold the special lengthy session because the law requires the Supreme Court to hear an "expedited" appeal of any challenges, and because lawyers in at least 11 separate challenges have to be heard.

"Hard" money is strictly regulated -- the new law sets a $2,000 cap on individual contributions, and the names of donors and their contributions must be filed with the Federal Election Commission.

On the other hard, "soft" money is unregulated -- no limits and no reporting -- but supposedly cannot be used directly in a federal campaign. However, in recent elections, especially presidential elections, the two major parties have become adept in using hundreds of millions of dollars in "soft" money in ways that affect elections indirectly.

Another tactic was third-party political ads by unions and corporations.

BCRA, sometimes called the McCain-Feingold Act after its sponsors, attempts to end all that.

A badly split three-judge trial court struck down the core provisions of BCRA (pronounced "BICK-ruh" if you want to sound like a Washington insider) this spring.

With the trial court ruling stayed, the Supreme Court then agreed to hear the direct appeal, but told the challengers they had to file their briefs first -- even though they appeared to have won at the trial level and normally would have filed their briefs after the government.

The order in which the Supreme Court ordered the briefs to be filed indicated the justices are hearing the case "de novo" -- looking at the facts from the beginning and not paying too much attention to the 1,700 pages of opinions and memoranda produced by the three-judge trial court in reaching a decision.

The challengers of the law are a very mixed bag, consisting of individuals, groups and organizations who are not normally allies.

Everyone expected Sen. Mitch McConnell, R-Ky., to challenge the law. Partially responsible for getting Republicans elected to the Senate, McConnell was one of the act's earliest opponents.

Other challenges were filed by the National Rifle Association, National Right to Life and similar groups. But the American Civil Liberties Union is a challenger too. The Republican National Committee is a challenger. So is the California Democratic Committee. The national Chamber of Commerce is a challenger as well. So is the AFL-CIO, which normally disagrees with the Chamber of Commerce on just about everything.

Some groups, like the ACLU are challenging BCRA because they see it as a restriction on speech. Other groups are challenging the law not only for speech purposes, but because it seriously deflates their impact on the political process.

Of the many friend-of-the-court briefs filed in the case, most are supporting the FEC's position, not the challengers.

A group of churches, mainly from the Los Angeles area, says it is dedicated to improving the lives of low-income minorities, and points to the $4.1 billion in "soft" money raised by the Democratic and Republican parties between 1995 and 2002. In a brief to the high court supporting the FEC, the members of the group says they "are united by a civil rights issue affecting each of their communities: campaign finance reform."

Former Sen. Fred Thompson, R-Tenn., also filed a brief supporting the FEC and the constitutionality of BCRA. You would normally expect him to be an ally of McConnell's.

But Thompson headed the Senate Governmental Affairs Committee from 1997 to 2001. His committee produced a 10,000-page report on campaign finance abuses in the 1990s, and the report served as one of the many reasons Congress enacted BCRA.

Before BCRA, Thompson said in his brief, campaign finance law was full of loopholes. "Those loopholes allowed for 'campaign finance law manipulation and corruption' that needed to be redressed to restore confidence and integrity to our electoral system," the brief says.

Another brief from the League of Women Voters supports the act, saying it "prevents corruption and the appearance of corruption without impermissibly burdening speech."

A brief from Common Cause supports BCRA because -- citing two Supreme Court rulings -- the act "serves compelling governmental interests not only in 'preventing corruption and the appearance of it that flows from munificent campaign contributions' ... but also in closing the enormous loopholes in the law that have been used for 'circumvention of (valid) contribution limits.'"

But then there are briefs on the opposite side, such as the one filed jointly by Virginia, North Dakota, Idaho, Indiana, Kansas, Nebraska, Ohio, South Carolina and Utah in support of the challengers.

The states object to provisions of BCRA that attempt to restrict "money raised (by just about anyone) and spent in specific compliance with the limits and definitions of a state's own election law. State parties raise this money and keep it in their own state accounts for making contributions to state candidates and to pay for voter contact expenses. National parties also raise this money to make state-regulated contributions to state candidates and transfers to state parties.

"BCRA regulates both," the states' brief says. "We are not challenging Congress' wisdom or ability to regulate federal money for the very reason Congress should not be allowed to regulate non-federal money; we each lack the power to regulate the other."

House Speaker Dennis Hastert, R-Ill., told the Supreme Court in his own support brief that BCRA "violates the Constitution by impermissibly restricting the speaker's ability to participate in state and local political activities."

And the Washington-based libertarian Cato Institute and Institute for Justice, in a brief also supporting the challengers, says, "Our constitutional democracy ... relies on the core premise, endorsed through the First Amendment, that politicians and the public will be influenced not merely by periodic voting alone, but also by the political speech of competing interest groups and individuals ... To indict the exchange of political support for official action would brand virtually all behavior by elected officials and condemn the Constitution itself."

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

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