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"There are strict laws limiting campaign advertisements that say to vote for or against a candidate. But there are far less controls on issue ads that say virtually the same thing, yet merely stop short of using the word "vote."

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9.12.03
Politics and Economy:
Campaign Finance
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Campaign Finance in the Supreme Court

UPDATE, 12/12/03: On Wednesday Dec. 10, 2003 the Supreme Court issued its opinion in McConnell v. Federal Election Commission (FEC). The court upheld, 5-4, the Bipartisan Campaign Reform Act of 2002 on the key issues of banning "soft-money" contributions and limiting "issue ads." The justices struck down two provisions of the law — a ban on political contributions from those under voting age and limitations on party spending unrelated to a particular party candidate. The ruling means that the law will apply to the 2004 election.

Both court and campaign watchers believe that the fight is not over. The ban on soft money angered groups as diverse as the ACLU and the NRA. Some of the Supreme Court justices suggested that those opposed to the act return at a later date if they found proof that application of the law had unconstitutional effect.

Other critics of the law believe that it doesn't go far enough — speculating that special interest groups and business interests have already found loopholes in the measure. Indeed, two Congressmen, Christopher Shays, (R-CN), and Marty Meehan, (D-MA) have filed a suit in federal court challenging the Federal Election Commission's interpretation of the new law. The Supreme Court ruling upholding The Bipartisan Campaign Reform Act permits their challenge to go forward in court.

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Ten months ago the Bipartisan Campaign Reform Act (BCRA), also known as the McCain-Feingold bill, took effect. It was the first real overhaul of the law since the Watergate years. Although the BCRA is now law it is being challenged in court — in fact the Supreme Court came back into session early to hear the case, McConnell v. Federal Election Commission. Get the facts on the case below.

The case is an amalgamation of 11 suits against the U.S. Department of Justice and the Federal Elections Commission, with 84 different plaintiffs. The AFL-CIO, American Civil Liberties Union, the National Right to Life Committee, the National Rifle Association and both the Republican National Committee and the California Democratic Committee are among the plaintiffs. The suit was named McConnell v. Federal Election Commission (FEC), after one of the law's key opponents, Senator Mitch McConnell (R-KY). The suit argues that the BCRA is unconstitutional on several grounds, including restraint of free speech, and restraint of the 1st Amendment rights of free association and belief.

In the opening arguments, plaintiffs' attorney Kenneth Starr focused on two core aspects of the law under review. The first is the banning of unregulated contributions to national political parties — so-called "soft money." Soft money refers to contributions made to political parties not candidates. Before BCRA contributors could get around the limits imposed on contributions to specific candidates by donating money to the national party which then passed on the money to its candidates. BCRA put restrictions on the dispersal of such money to candidates.

The second major issue addressed in the first hearing concerns the strict limits put on broadcast ads paid for by corporations or unions. The BCRA labeled these "electioneering communications" and banned them for 60 days before a general election and 30 days before a primary. The BCRA also mandates that such ads state clearly who paid for them.

Some of this session's debate rests on earlier court law, especially the Supreme Court's 1976 ruling Buckley v. Valeo, which stated that while Congress could regulate contributions to candidates, it could not limit what candidates chose to spend. This ruling was made on free speech grounds.

Court watchers are having trouble predicting the outcome of the case. While Justice Scalia is squarely opposed to BCRA, the positions of Chief Justice William H. Rehnquist and Justice O'Connor are less easy to gauge.

Sources: THE NEW YORK TIMES, Records of the Supreme Court, On the Docket from Medill School of Journalism
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