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Aug 6, 2003 -- Democracy 21: Excerpts of Amicus Briefs in McConnell v FEC For Immediate Release:
Wednesday , August 6, 2003
Contact: Rebecca Webber
202-429-2008
rwebber@democracy21.org
Vol. II, No. 19
Campaign Finance and the Courts
- A Report from Democracy 21 President Fred Wertheimer -
Broad Array of Interests File Amicus Briefs Defending New Campaign Finance Law:
Support Ranges from 20 State Attorneys General to AARP; Warren Buffet and other Business Leaders to Academics; Former ACLU Leaders to Religious Groups; Civil Rights and Public Interest Groups to Former and Current Members of Congress
A broad and diverse range of individuals, groups, state officials and current and former federal officeholders filed amicus briefs yesterday in the Supreme Court supporting the Bipartisan Campaign Reform Act of 2002 (BCRA) in the lawsuit challenging its constitutionality.
The U.S Solicitor General, and the legal team representing the congressional sponsors of the new law, who are intervening defendants in the lawsuit, also filed briefs yesterday in support of the BCRA. The case is scheduled for four hours of oral argument on September 8, 2003, and a decision by the Supreme Court in the case is expected by the end of the year.
" The breadth of support reflected in the amicus briefs filed to defend the new campaign finance law, from individual citizens to the 35 million-member AARP, demonstrates the broad consensus in the country for restoring integrity and fairness to our democracy," said Democracy 21 President Fred Wertheimer, a member of the legal team representing the congressional sponsors of the new law.
The amicus briefs, highlights of which are excerpted below, were filed by:
* Attorneys General from 20 states, Puerto Rico and the U.S. Virgin Islands
* The Committee for Economic Development, an association of business leaders, and individual business leaders including Warren Buffet, long-time campaign finance reform leader Jerome Kohlberg, and Gerald Greenwald, former CEO of United Airlines
* Former leaders of the American Civil Liberties Union
* Former Senator Fred Thompson, who led the Senate investigation into the campaign finance abuses in the 1996 presidential campaign
* Current Members of Congress
* Former Members of Congress
* Political scientists with expertise in political parties
* Common Cause and the AARP
* The League of Women Voters
* Community organizations dedicated to civil rights, led by Greenlining Institute
* The Interfaith Alliance and other religious organizations
* The Center for Responsive Politics
* The Center for Governmental Studies
* Public interest groups
* International experts and scholars
The amicus briefs filed in the lawsuit, McConnell v. FEC, offer an array of perspectives on diverse issues: The Committee for Economic Development, for example, describes the soft money system as " a fundamentally commercial process in which businesses feel compelled to participate;" the states assert that "the plaintiffs' invocation of 'federalism' in this case is nothing more than a political fig leaf;" and a group of political scientists makes the case that BCRA "promises to strengthen, rather than harm, the political parties."
Highlights of these and other briefs are excerpted below. Copies of the amicus and interveners' briefs and the brief filed by the U.S. Solicitor General are available on the Democracy 21 website at www.democracy21.org and on The Campaign Legal Center website at www.campaignlegalcenter.org. The Legal Center also maintains a library of all of the briefs and related documents filed in the case
Invocation of Federalism Is a "Political Fig Leaf"
In their amicus brief, 20 states, led by Iowa, Vermont, and Connecticut, and joined by the Commonwealth of Puerto Rico and the U.S. Virgin Islands, challenged the plaintiff's "federalism" arguments as "wholly unsupported," writing:
The Amici States are particularly troubled by the plaintiffs' effort to derail Congress's crucial reform effort by invocation of "federalism." The Amici have a special expertise in the area of federalism, and they pay close attention to the constitutional division of authority between the federal and state governments. In the view of Amici, the plaintiffs' federalism arguments are wholly unsupportable. …
Plaintiffs suggest that BCRA regulates matters unconnected to federal elections and undermines the authority of States to regulate state and local elections. They consistently overstate the impact on state elections while minimizing the clear basis for federal authority over the regulated activities. The few specifics they cite illustrate the weakness of their arguments.…
As important as what BCRA does is what BCRA does not do: it does not directly regulate the States in any way. The Act leaves untouched such matters as the timing of state elections, the structure of state government, the qualifications of state officeholders and voters, and the terms and duties of state officials. The degree of hyperbole found in the plaintiffs' briefs, and in the brief of the Amici States of Virginia, et al., might suggest otherwise. But, contrary to the assertion of these amici States supporting the plaintiffs, BCRA does not affect "a State's ability to have its own rules on how its own government will be chosen," nor does it "trump[] state campaign finance laws." Br. of Amici Curiae Virginia et al. at 2. …
The plaintiffs' invocation of "federalism" in this case is nothing more than a political fig leaf. Plaintiffs seek to obscure the fact that their First Amendment arguments, if adopted, would foreclose meaningful state innovation across the political landscape of campaign finance law. Plaintiffs truly seek to restrict, not to preserve, state authority. Their arguments should be rejected.
Businesses Give Soft Money "To Secure Influence" Or "Avoid Retribution"
The Committee for Economic Development, a nonpartisan research and policy organization comprised of approximately 250 business leaders and educators, was joined by 20 prominent business leaders, including Warren Buffett, Paul Volcker, Jerome Kohlberg, Gerald Grenwald and Edward A. Kangas, in filing a brief that explained business participation in the soft money system:
There can be little doubt that the current soft money system promotes both the perception and reality of rampant influence peddling by both major parties and that it has given rise to the widespread belief that Congress routinely acts for the benefit of large corporate contributors, rather than on the merits of issues presented….
[B]usinesses typically make soft money contributions for one of two reasons: (i) to secure tangible benefits in the form of access to and influence over legislators; or (ii) to maintain access and avoid retribution in the form of adverse governmental action on issues that directly affect solicited businesses….
The massive evidentiary record in these cases amply supports amici's view of soft money solicitation and contribution as a fundamentally commercial process in which businesses feel compelled to participate….
[C]orporate executives have felt coerced into giving ever-escalating soft money contributions with ever-increasing frequency by subtle threats of retribution that accompany soft money solicitations.
ACLU's Opposition to BCRA Is "Misplaced" and BCRA's Provisions are "Clearly Constitutional," Say Former ACLU Leaders
Former ACLU leaders who served as the organization's president, executive director, national director, and national legislative director joined to support the constitutionality of BCRA and to oppose the position taken by ACLU's current leadership, arguing:
Amici have devoted much of their professional lives to the ACLU and, in particular, to the protection of free speech. They are proud of their ACLU service, and they continue to support the ACLU's matchless efforts to preserve the Bill of Rights. They believe, however, that the opposition of the current leadership of the ACLU to campaign finance reform in general, and the Bipartisan Campaign Reform Act ("BCRA") in particular, is misplaced.
Amici submit this brief to elucidate their publicly-stated view that the electioneering provisions of BCRA are facially constitutional….
[T]he application of existing funding and disclosure requirements to electioneering communications as defined by BCRA is clearly constitutional under the Court's precedents. The Court has long upheld restrictions on corporate and labor union funding of electioneering communications, and has similarly held that disclosure requirements serve important First Amendment interests in informing the public about the sources of support for candidates for public office. The extension of these funding restrictions and disclosure requirements to electioneering communications as defined by BCRA is perfectly consistent with the Court's campaign finance jurisprudence….
Contrary to plaintiffs' hyperbole, Congress has not banned any speech in adopting the primary definition of electioneering communication.
Soft Money System Produced Campaign Finance Abuses and Undermined Public Confidence, According to Current and Former Lawmakers
Former Senator Fred Thompson , whose experience ranges from serving as Republican counsel to the Senate Watergate Committee in the 1970s to chairing the 1997 Senate investigation into "numerous abuses of the campaign finance laws during the 1996 presidential campaign," filed a brief detailing how that investigation "provided an overwhelming factual basis" for BCRA:
Brief Filed by Former Senator Thompson
The investigation by the Senate Governmental Affairs Committee in 1997 and 1998 established a documentary and testimonial record that proved crucial in convincing legislators of the need to close the loopholes in FECA that had so badly distorted our electoral system…. That record exposed the worst of our system: meetings and sleepovers in the White House for specially chosen contributors of high-dollar soft money, the alteration in policy to meet the demands of donors, and the use of soft money for advocacy purposes at an unprecedented scale. In seeking to return the system to what it had been under FECA before those loopholes were discovered, Congress had a more than ample evidentiary record and a constitutionally proper mandate under Buckley to enact the BCRA.
Bipartisan groups of 42 former Members of Congress, led by former Representatives David E. Skaggs (D-CO) and William F. Clinger (R-PA), and including former Vice President Walter Mondale, and 25 current lawmakers, led by Representative and former North Carolina Democratic State Party Chair David Price (D-NC) and Representative Mike Castle (R-DE), filed amicus briefs supporting the constitutionality of the BCRA. Their briefs focused on issues of government integrity and public confidence, as the following excerpts note:
Brief Filed by Current Members of Congress
Members of Congress have found that huge soft money donations have potentially serious effects on our government's integrity…. As Senator Feingold stated on the floor of the Senate, "these days, major legislation almost never comes to this floor without interests, often on both sides, that have made major soft money contributions to the political parties." According to Rep. Morella, "soft money has been at the heart of every political or corporate scandal over the past decade." …Even beyond any direct impact on government decision-making, members of Congress found that the explosion of soft money has had a devastating impact on public confidence in government.
Indeed, precisely because these donations are "soft," that is, outside the scope of federal regulation, they particularly damage public opinion. Many soft money donations are dramatically larger than permitted hard money contributions. Many very large donations come from corporations and unions, in defiance of the ban on corporate and union participation in federal elections. From soft money, voters receive the troubling message that big money is simply too powerful to be ignored. Effective controls on soft money would perform the extremely valuable function of directly redressing public distrust of our political system.
Brief Filed by Former Members of Congress
[T]he campaign finance system that existed before BCRA … often altered legislative outcomes by elevating moneyed interests at the expense of the broader public interest…. Regrettably but undeniably, it is a fact of political life that members of Congress are often more attentive to those who donate money to them or to their political party than to those who do not. Large donations are the lifeblood of any campaign. Money leads to preferential access, and access means influence….As former Senator Paul Simon bluntly stated, "When people have donated $50,000 or $100,000, they are going to want their pound of flesh after the election." The expectation is unwritten, but is often honored nonetheless.
Political Scientists Say BCRA Promises To Strengthen Political Parties
A group of leading political scientists with expertise on political parties, led by Norman Ornstein of the American Enterprise Institute, filed an amicus brief focused on BCRA's impact on political parties, noting:
As political scientists who have studied and written extensively on political parties in the United States, we have a particularly strong appreciation for the vital role political parties play in our democratic system of governance….
Soft money and candidate-specific issue ads dramatically altered how political parties operated. National parties relied increasingly on a small number of very large contributions - some in the multi-million dollar range - from corporations, unions, and wealthy individuals…. This unhealthy dependence on a small number of very large donors raised serious concerns that these donors would exert undue influence on the officeholders who benefited from their contributions….
BCRA promises a new age of strength for political parties. With the soft money loophole firmly closed, unregulated financial donations from corporations, unions, and wealthy donors will no longer be allowed to taint the political process with the suggestion of impropriety. Instead, candidates and parties will return to their traditional focus on party-building. This renewed focus will make the parties more receptive to the needs of individual voters and do much to restore confidence in the integrity of the American political system.
Public Interest Groups Assert BCRA Fills Vital Need
Public interest organizations filed amicus briefs supporting the vital need for the BCRA to "prevent the continued evasion of current law" and ensure "responsive government."
Common Cause and AARP
The soft money system - addressed by Title I of BCRA - grew over time into nothing less than a massive scheme for circumventing the contribution limits and source prohibitions of the federal campaign finance laws - measures that, over the last hundred years, have been enacted by Congress and sustained by this Court as necessary to preserve "the willingness of voters to take part in democratic governance." Shrink Missouri, 528 U.S. at 390….
The enactment of BCRA was a necessary congressional response to this evisceration of the federal election laws, not just as a step to address the corruption and appearance of corruption caused by soft money, but also as an anti-circumvention measure intended to repair and restore laws that this Court has deemed "critical … if confidence in the system of representative Government is not to be eroded to a disastrous extent." Buckley v. Valeo, 424 U.S. 1, 27 (1976), quoting Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 565 (1973).
In 1997, in the midst of a major congressional investigation of the campaign finance abuses that occurred during the 1996 presidential election, Democratic National Committee (DNC) fundraiser Johnny Chung was quoted as saying, "The White House is like a subway: You have to put in coins to open the gates."
League of Women Voters
In late October of 1996, the following television advertisement ran repeatedly in Arkansas:
Senate candidate Winston Bryant's budget as Attorney General increased seventy-one percent. Bryant has taken taxpayer funded junkets to the Virgin Islands, Alaska, and Arizona. And spent about $100,000 on new furniture. Unfortunately, as the state's top law enforcement official, he's never opposed the parole of any convicted murderers. And almost 4,000 Arkansas prisoners have been sent back to prison for crimes committed while they were out on parole. Winston Bryant: government waste, political junkets, soft on crime.
Winston Bryant was running for an open seat in the United States Senate. The tax-exempt organization that sponsored the ad, Citizens for the Republic Education Fund, spent more than $300,000 on a last-minute television blitz of Little Rock and Jonesboro. Bryant lost. Such advertisements come as little surprise, of course. They are a powerful part of many campaign strategies.
What is surprising is that until the enactment of the Bipartisan Campaign Reform Act (BCRA), such advertisements were not treated as electioneering speech under federal law….
Plaintiffs rest much of their attack on BCRA's handling of "electioneering communications" on the supposed unreliability of parts of two particular reports. These reports, the Buying Time studies, surveyed television ads from the 1998 and 2000 election cycles and concluded that very few issue ads would be affected by BCRA's primary definition….
In their individual opinions, two of the three judges on the district court strongly rejected Plaintiffs' broad-brushed attacks. As Judge Leon put it, "I find that although the Buying Time studies contain some flaws and shortcomings, … those shortcomings do not detract from the studies' credibility and reliability." Supp. App. at 1335sa. Judge Kollar-Kotelly went even further. She described Plaintiffs' expert's attempts to discredit the studies as "a piñata party: if one hits the piñata enough, it will eventually crack apart." Id. at 764sa. In the Plaintiffs' case, however, the expert clearly failed to crack the piñata.
Community Organizations Dedicated to Civil Rights, Led by the Greenlining Institute:
While Amici represent diverse constituencies, including community-based organizations of color, faith-based organizations, minority business chambers, and community development corporations, they are united by a civil rights issue facing each of their communities: campaign finance reform.
Amici are committed to eradicating the soft money system that displaced the American promise of "one person, one vote" with the corrosive reality of a "pay to play" scheme. Amici are deeply interested in ensuring that communities of color can participate fully in the political process. Amici believe that the soft money reform in BCRA is an important, indeed critical, change, that will help open the process for presentation of their issues to an audience of elected officials who will be responsive to their concerns.
The current campaign finance regime has undermined the meaning of equal voting rights by elevating the interests of contributors over average citizens. Major leaders of both parties and the President successfully engineered a difficult but major step in the right direction with the Bipartisan Campaign Reform Act. Amici believe that the Act moves forward aggressively to provide an opportunity for much greater participation by communities of color in the election process. It is well within Congress' and the President's power to regulation elections and prevent corruption or the appearance of corruption.
Faith-Based Groups Argue "Responsible and Moral Governance at Stake"
Faith-based organizations like amici [ Interfaith Alliance Foundation, General Synod of the United Church of Christ, Unions of American Hebrew Congregations, Unitarian Universalist Association, NETWORK: A National Catholic Social Justice Lobby, and Central Conference of American Rabbis], a s well as their constituents and members, share in a proud tradition of conscientious political participation and public service that will be impaired without a strong and effective system of campaign finance regulation. Fostering responsible and moral governance requires elected officials who focus on the needs of their constituents, not sources of funding. Respect for individual dignity requires that all citizens have confidence that their direct political participation - the giving of their hearts and minds, not just their dollars - can positively affect how our nation is governed. The integrity and vitality of our democracy require that ordinary citizens, including people of faith, are allowed a meaningful voice in the political process.
Center for Responsive Politics
The ability of the parties to seek unlimited soft money contributions … led both the Democratic and Republican parties to rely every more heavily on these large donations to fund their operations and election-related activities…. In fact, the giving patterns and trends unequivocally support the conclusion that these soft money contributions were being given to influence federal elections.
The giving patterns among organizational donors reveal a politically pragmatic approach, with most organizations delivering money to both sides during the same election cycle….
The parties' reliance on these large donations created the appearance, at the very least, that these donations brought access to government officials and unduly influenced important government policy decisions.
Center for Governmental Studies
What is at stake in this Court's resolution of the dispute over the "electioneering communications" provisions of BCRA is nothing less than the ability of all levels of government to enforce effective campaign finance laws (1) requiring disclosure of the identity of political actors engaging in election-related activities and of the amounts and sources of money for those activities and (2) regulating the mechanics of corporate and union involvement in the political process.
Public Interest Research Groups; Fannie Lou Hamer Project; Association of Community Organizations for Reform Now; and Public Campaign
The soft money regulations in BCRA's Title I are unquestionably justified by the government's interests in combating the reality or appearance of corruption, as the Defendants and Intervenors have comprehensively documented in the proceedings below. In addition… this litigation presents the Court with an opportunity to affirm that equality of access to the electoral system serves core values that are implicit in the First Amendment….
The rise of … soft money … brought a radically increased concentration of electoral power in the hands of an elite group of donors….
[S]oft money has been a back channel for the wealthy not only to instill a sense of obligation in federal candidates, as the defendants and intervenors maintain, but also to greatly amplify their electoral influence. Congress rightly considered the corrosive effect carried by such concentration of electoral power in the hands of these few donors.
International Experts on Campaign Finance Argue BCRA is Badly Needed and Far More Modest than Other Countries' Campaign Finance Regulation
A group of 22 international academic experts on campaign finance, from countries around the world, highlighted the need for BCRA in their amicus brief:
Every major democracy recognizes that money can distort politics, and each restricts campaigning to mitigate corruption in the electoral system. A comparative understanding of such efforts may aid this Court's review of Congress's efforts to close loopholes in the American campaign finance regime….
Nearly every democracy acknowledges that significant restrictions on advertising are necessary to preserve the integrity of the political process. When measured against those restrictions adopted in other countries, BCRA's sixty and thirty-day constraints on corporate and labor union advertising are clearly located toward the extreme end of permissiveness….
Nearly all major democracies impose restrictions on the flow of money that are far more onerous than BCRA's restrictions on soft money….
BCRA is a badly needed step that will begin to pull campaign finance in the United States back from the fringe of international practice.
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NOTE : Democracy 21 President Fred Wertheimer is a member of the legal team representing the congressional sponsors of the new campaign finance law in the case challenging its constitutionality and is responsible for public information on the case for the legal team and sponsors. |
