The Campaign Legal Center: LEGAL CENTER WEEKLY REPORT July 11, 2002

Jul 12, 2002 -- LEGAL CENTER WEEKLY REPORT July 11, 2002

Former Solicitor General:
"Free Speech and Campaign Reform Don't Conflict"

By SETH WAXMAN
New York Times op-ed, July 10, 2002 :

WASHINGTON - There has long been a national consensus, the origins of which stretch back to Theodore Roosevelt, that corporate and union money and large individual contributions should have no place in our federal election system. Bans on corporate and union election spending and large individual campaign contributions have consistently been upheld by the Supreme Court as constitutional under the First Amendment.

Over the years, the national political parties, as well as corporations, labor unions, and the interest groups they finance, have circumvented the spirit, if not the letter, of the campaign finance laws. The new Bipartisan Campaign Finance Reform Act, known as McCain-Feingold, seeks to restore integrity to this system.

The law closes the infamous soft-money loophole that federal officials and candidates have used to raise huge unregulated contributions, ostensibly for general party-building activities, from corporations, unions and individuals that often have important matters pending before the federal government. Those soft-money contributions have in fact usually been spent by the parties in support of candidates.

In banning soft money in federal elections, McCain-Feingold is fully consistent with Supreme Court rulings that affirm Congress's authority to regulate political contributions where they create an appearance of corruption that undermines the vitality of our democracy. After Enron and the Lincoln Bedroom, does anyone doubt that enormous political contributions provide donors with disproportionate access to elected federal officials?

The new law also attacks the corrosive development of sham issue ads - television ads that are clearly meant to influence federal elections, yet are paid for with money that does not comply with federal fundraising restrictions. For example, corporations and unions pay for millions of dollars' worth of these ads, though the law prohibits them from using their funds to influence federal elections. Likewise, political parties pay for ads that pretend not to support or attack candidates, but do just that, with money that is not raised in compliance with federal campaign law.

Opponents of reform argue that treating sham issue ads for what they really are - campaign ads - bans speech. It does no such thing. Such treatment simply requires that these campaign ads be paid for with legal campaign money.

In the case of corporations, unions, and the interest groups they finance, the law applies only to a narrow range of ads - those that are broadcast shortly before elections and are aimed at voters relevant to a specifically mentioned candidate. And even within that narrow range the law allows these entities to run any ad, at any time, in any medium - provided they use money raised legally from individuals through political action committees. Likewise, political parties can run ads that say anything, at any time, in any medium - so long as the money they use is raised from sources, and within the limits, allowed by federal law.

Opponents also say the new law violates the First Amendment because it regulates advertising regarding "issues," not candidates. That denies reality.

When the Supreme Court in 1976 considered Congress's last effort to reform campaign finance legislation, the court distinguished between campaign ads, which may be regulated, and issue discussion, which generally may not. Seeking to draw a line between the two in the context of a vague statute, the court interpreted the 1974 law to regulate only those interest-group ads that use words such as "vote for" or "vote against."

But experience has shown that this "magic words" test simply does not work. Here is a real-life example of the kind of "issue" ad that opponents of McCain-Feingold wish to exempt from any campaign regulation:

"Senate candidate Winston Bryant's budget as attorney general increased 71 percent. Bryant has taken taxpayer-funded junkets to the Virgin Islands , Alaska and Arizona . And spent about $100,000 on new furniture. . . . Winston Bryant: government waste, political junkets, soft on crime."

Opponents say this is an issue ad, not a campaign ad, because it never uses words like "vote against Bryant."

Today, even most ads run by candidates themselves don't use the magic words identified by the Supreme Court in 1976. It has become absurdly easy for political parties, corporate spenders and interest groups to skirt the law simply by avoiding those words in their candidate-advocacy messages. Technical compliance with the law combined with obvious evasion of its spirit has turned campaign finance into a cynical game. That is why Congress needed to act - to draw a line that actually works.

The First Amendment does not condemn us to a debased political process awash in unlimited, disguised donations. We need not confront daily the demoralizing show of elected officials chasing immense contributions that everyone knows buy preferential access and influence. We can have both free speech and a government of which our citizens are proud. The court has marked the way to do that, and Congress has followed its path.

Seth P. Waxman served as solicitor general during the Clinton administration and represents the sponsors of the new campaign finance reform law in litigation challenging its constitutionality. © 2002 The New York Times Company

"Campaign Reform's Worst Enemy"

by BRUCE ACKERMAN and IAN AYRES

New York Times op-ed, July 6, 2002 :

NEW HAVEN - The Federal Election Commission has embarked on a suicide mission. It has issued regulations that will undermine the centerpiece of the McCain-Feingold campaign-finance reform law: its ban on soft money. By taking this step, the commission will only succeed in making itself the next target of reform.

As it is currently organized, the F.E.C. deserves to die. A new commission, with more seasoned and less partisan members, would go a long way toward ensuring fairer and more honest elections. The question is how to reconstitute the F.E.C. so that this ideal can become a reality.

From its beginning in 1974, the commission's distinctive structure has made aggressive enforcement impossible. The six-member body includes three representatives from each party. Because four votes are needed for action, Republicans or Democrats can block any major initiative. The commission unanimously rejected its general counsel's finding that both the Clinton and Dole campaigns illegally accepted soft money during the 1996 campaign.

In contrast, the commission has acted with great speed to further the common interests of both parties in eroding the McCain-Feingold ban on soft money that is not subject to federal contribution limits. It has already approved a loophole allowing national parties to create "independent" groups to continue to raise soft money. Another regulation permits national candidates to help state parties raise unrestricted funds that will assist in federal election campaigns.

As a cartel of the two major parties, the agency also fails to satisfy basic standards of fairness. The McCain-Feingold law is the first election statute to include sentencing guidelines. Criminal defendants will predictably charge that they are victims of political vendettas, and the agency will be hard-pressed to respond credibly. The problem is structural, and it cannot be solved so long as party affiliation remains an important criterion in the selection of commissioners.

The only serious question is how to change this super-politicized system. Many reformers have been attracted to a simple solution: Replace the six-member commission with a single election czar. To assure this person's integrity and independence, require the president's nominee to win Senate confirmation and then guarantee the appointee a 10-year term.

But this simple solution is politically naïve and fails to assure against systematic unfairness. The appointment of a new election czar would become a high-stakes matter. Whoever controlled his appointment could dominate the campaign system for an entire decade. If the presidency and the Senate were controlled by the same party, what would stop them from appointing a strong partisan?

A better way to ensure that the new agency is impartial is to make the F.E.C. a five-member body drawn entirely from the ranks of the retired federal judiciary. These men and women should have to be 65 years old to qualify. Such experienced judges would have compiled track records that permitted a full assessment of their fairness. By this stage in their careers, they would have their eyes on the history books and would be reluctant to tarnish their reputations by blatant acts of partisanship.

To further ensure impartiality, one vacancy on the commission should open up every two years, with each commissioner serving for a full decade. This structure would prevent a momentary period of single-party control of the White House and Senate from quickly transforming the agency into a partisan operation. The only way to restore the credibility of the tarnished F.E.C. is with experienced professionals who have established reputations for fairness.

Of course five retired judges wouldn't be able to do the entire job themselves. But neither would an elections czar. The judges could create a climate of legitimacy that would permit the commission to survive the bitter attacks that will invariably accompany the energetic implementation of any serious campaign reform agenda.

Upcoming Events

July 18: The Campaign Finance Institute will present a lunch briefing by representatives of the opposing legal teams in McConnell v. FEC. Those challenging the Reform Act's constitutionality will be represented by James Bopp, General Counsel of the James Madison Center , and Trevor Potter will brief for the Reform Act defense team. Michael J. Malbin, the Institute's Executive Director, will moderate. The discussion will begin at noon , and lunch will be served. To attend, please RSVP to events.cfinst.org or call 202-969-8890.