Legal Center Publications on BCRAAmerican Bar Association Annual Developments: 2004-2005 Campaign Finance Law: The 2004 Election Cycle, Section 527 Organizations and Revisions in Regulations The 2004 election cycle was the first election cycle under the Bipartisan Campaign Reform Act of 2002 (BCRA). The Act constitutes a significant change in federal campaign finance law in at least two respects: first, BCRA prohibits national political party committees, as well as federal candidates and officeholders, from soliciting, receiving or directing soft money (i.e., funds not in compliance with federal law contribution amount limitations, source prohibitions, and reporting requirements); and second, BCRA prohibits corporations, trade associations, and labor organizations from paying for "electioneering communication" (i.e., any broadcast, cable or satellite communication referring to a clearly identified federal candidate and targeted to the candidate's state or district, sixty days before a general election and thirty days before a primary election).
The law was challenged in court and after nearly 20 months of legal battles (and one month before the election year began), the U.S. Supreme Court upheld almost entirely the constitutionality of the Act in its landmark McConnell v. FEC decision.
This article will detail how the new law worked in the 2004 election cycle, and what enforcement issues the Federal Elections Commission has before it, as well as summarizing other related litigation filed and decided in 2004-2005.
Click here to read the full article.
The Campaign Finance Guide
The Campaign Finance Guide is a comprehensive primer on federal campaign finance laws in the new regulatory world of the Bipartisan Campaign Reform Act of 2002 ("McCain-Feingold").
The Legal Center has also developed an extended on-line version of the Finance Guide with additional resources, links, definitions, greater access to many related topics of interest, available at: www.campaignfinanceguide.org. This website will be continually updated as legal developments occur in federal campaign finance law.
Features of the Finance Guide include:
- Overview of the regulatory system detailing contribution and expenditure limits for individuals, political committees, parties, unions and corporations (p. 16-35).
- Sponsorship identification requirements for both the FEC and FCC (p. 45-46)
- Press exemption from media regulations on political issues (p. 44)
- Overview of the Federal Election Commission and how to file a complaint (p. 56-63)
- How the Presidential Public Funding system works (p. 48-55)
- Glossary of key terms and resources (p. 64-67; 70)
To download and print a .pdf version of the published Finance Guide , please click here.
Lessons Learned from McConnell v. FEC : An Analysis by Key Participants in this Historic Supreme Court Case
On January 16, 2004 , representatives of the national reform community came together to discuss the landmark decision by the Supreme Court in McConnell v. FEC . This one-day conference analyzed the origins, holdings and consequences of the McConnell decision. The record and pleadings on which the Supreme Court relied in upholding the Bipartisan Campaign Reform Act of 2002 were due to the preparation and efforts of many in the reform community—from those who published research on campaign finance and authored the legislation to those who presented the legal defense of the law. The conference panelists were intricately involved in defending BCRA either as counsel in the case, counsel for amici, or as expert witnesses. We also heard from academics and other experts who helped build a foundation of political science research that served as the evidentiary basis of the case.
As the reform community pursues further goals and defends the implementation and enforcement of BCRA, it is helpful to look back and examine the elements of the McCain-Feingold reform of campaign finance laws and the historic Supreme Court decision it produced. Our panelists offered us an enlightening and lively discussion. We hope that you will find helpful the edited transcript of their remarks contained in the report.
Click here to view the report.
Post-McConnell Analysis: Election Law Journal
The Election Law Journal Spring 2004 issue focuses exclusively on the U.S. Supreme Court decision in McConnell v. Federal Election Commission. This volume includes essays from Senators McCain and McConnell, academics, pundits, attorneys, and legal scholars.
Click here to learn more about the symposium issue on the Supreme Court Ruling on McCain-Feingold Campaign Finance Law in Election Law Journal.
Click here to read the entirety of Senator McCain's Essay.
Click here to read the entirety of Trevor Potter's and Glen Shor's essay.
Click here to read the entirety of Thomas Mann's and Norm Ornstein's essay.
"Barriers to Participation" by Trevor Potter and Marianne Viray
Despite the nation's founding commitment to participatory democracy, many barriers to candidate and public participation in the electoral process are damaging the public's confidence that our elections are fair and open to full participation by candidates and voters.
The nominating processes created by the two major parties mainly serve the goals of party "insiders" and the more politically extreme factions, at the expense of competition and public confidence in the two-party system. At the same time, barriers to minor party and independent candidates--closed primaries, excessive early-voter registration requirements and complicated state primary and general ballot access requirements--operate to foreclose the possibility of a meaningful multi-party system.
This Article evaluates these and other legal and political barriers, and discusses the cost that such practices impose upon the nation's civic life.
Click here to read the full article.
New Law Follows Markers Set Out by Supreme Court
Opponents of the Bipartisan Campaign Reform Act of 2002 ("BCRA" or the "Act") almost always refer to it as "an unprecedented assault" on the First Amendment. This scare language helps obscure the fact that the new Act was carefully drafted to take into account legal criticism of versions of the bill offered in previous sessions of Congress, and to build upon existing constitutional precedents and recent Supreme Court opinions. As a result, the new law is not a radical departure from previous political or legal practices, contrary to the hyperbolic claims of its critics. Instead, it is a constitutional exercise of government power to deal with two subjects the Supreme Court has already explicitly permitted Congress to regulate: the size and sources of contributions to political parties, and the expenditure of corporate and labor funds in federal elections.
Trevor Potter, General Counsel to the Legal Center, wrote this article, "New Law Follows Markers Set Out by Supreme Court" for the BNA's Daily Report for Executives and Money & Politics Report dated April 22, 2002.
Click here to view the article in its entirety.
"Campaign Finance Critics Push Myths - Not Reality"
"No sooner had the House passed the Shays-Meehan campaign finance reform legislation than critics in Congress and in interest groups rushed to trash it. They were joined by cynical, world-weary journalists, who usually invoked the infamous Law of Unintended Consequences: The goals of campaign finance regulation will inevitably be overwhelmed by unanticipated effects, rendering it either ineffective or pernicious."
Click here to view the article in its entirety.
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