Aug 7, 2003 -- Democracy 21: Excerpts of Congressional Sponsors' Supreme Court Brief

INTERVENERS URGE SUPREME COURT TO SUSTAIN BCRA IN ITS ENTIRETY

The congressional sponsors of the Bipartisan Campaign Reform Act of 2002 (BCRA) filed a brief this week in the Supreme Court to defend the constitutionality of the new campaign finance law.

Highlights from the brief are set forth below.

The sponsors, who are intervening defendants in the case challenging the BCRA, include Senator John McCain (R-AZ), Senator Russell Feingold (D-WI), Representative Christopher Shays (R-CT), Representative Marty Meehan (D-MA), Senator Olympia Snowe (R-ME), and Senator James Jeffords (I-VT).

In their brief, the congressional sponsors assert that ``BCRA`s aim is to restore public faith in federal officeholders and elections by closing the soft money and `issue` ad loopholes that had, in recent years, eviscerated the federal campaign finance laws.``

The case is scheduled for four hours of oral argument in the Supreme Court on September 8, 2003. Former U.S. Solicitor General Seth Waxman will argue the case for the congressional sponsors.

Excerpts from the congressional sponsors` brief are set forth below. The full text of the sponsors` brief, along with the brief filed by the U.S. Solicitor General to support the law and the amicus briefs filed by a broad array of interests in support of the law are available on the

Democracy 21 website at www.democracy21.org .

BCRA IS CONGRESS`S ATTEMPT TO RESTORE EXISTING LAW TO WORKING ORDER

Although the Federal Election Campaign Act (FECA) worked well for a time, its effectiveness was undermined when the Federal Election Commission (FEC) created significant loopholes, which players of the political money game relentlessly exploited. By the 2000 elections, political actors had ceased to observe anything like a prohibition against contributions or expenditures from corporations or unions, or against contributions in excess of statutory limits, for the purpose of influencing federal elections. The Bipartisan Campaign Reform Act (BCRA) is Congress`s attempt to restore FECA to working order.

The plaintiffs` position is that FECA, having fallen (or, more accurately, having been pushed), must, like Humpty Dumpty, remain forever smashed. They argue that the Constitution permits only rules that would be ineffectual to counteract either the reality or the perception of a system in which donors give massive assistance to political parties on the understanding that they create -- as Elihu Root stated -- ``a debt to be recognized and repaid.`` In their view, Congress, this Court, and the public must accept a political system in which an overwhelming majority of Americans believe that Members of Congress disproportionately heed the views of large donors to political parties -- even if those views do not coincide with what most constituents want, or what a Member thinks is best for the country. See SA 626-28(K), 1289-92(L); Mellman/Wirthlin Rep. 6-9 (JA ____-__).

PLAINTIFFS` ATTACKS ON BCRA STUDIOUSLY IGNORE ITS CORE FUNCTION OF RESTORING PUBLIC CONFIDENCE IN FEDERAL OFFICIALS AND ELECTIONS

As this Court has observed, ``[l]eave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.`` Nixon v. Shrink Mo. Gov`t PAC, 528 U.S. 377, 390 (2000). Nothing in BCRA casts the least doubt on ``our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.`` New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). But BCRA serves public interests every bit as profound: ``the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process. This case thus raises issues not less than basic to a democratic society.`` United States v. UAW, 352 U.S. 567, 570 (1957).

We note, however, that plaintiffs` attacks on BCRA studiously ignore its core function of restoring public confidence in federal officials and elections by closing the soft money and ``issue`` ad loopholes. Instead, they imagine obscure applications of BCRA, and then suggest those applications lie at the heart of the law; they stretch to find the most draconian possible interpretation of the law, only then to complain of its harsh effect; and most significantly, they repeatedly mischaracterize the law`s provisions, and thus attack something that does not exist.

BCRA`S ELECTIONEERING COMMUNICATIONS PROVISIONS BAN NO SPEECH

Plaintiffs` characterizations of BCRA`s new definition of ``electioneering communications`` are equally flawed. They persistently contend (e.g., McConnell Br. 39) that the electioneering communications provisions ``seek to prohibit core political speech.`` These provisions ban no speech. Corporations and unions remain free to run federal campaign ads, as long as they pay for the ads from PAC funds voluntarily contributed by individuals for that purpose.

Most fundamentally, plaintiffs mischaracterize BCRA as representing an epochal change in the law. In truth, BCRA merely strives to restore the efficacy of longstanding federal campaign finance laws, and to put an end to the evasion that has made a mockery of the law and left the public to believe that democracy is for sale.

Prior to enactment of BCRA, corporations, unions, individuals, and political parties routinely evaded long-established contribution limits and source restrictions. Hundreds of millions of dollars of contributions were used to influence federal elections without complying with federal standards. Similarly, by running campaign ads that avoided words of ``express advocacy,`` corporations and unions routinely evaded federal restrictions on the use of their general treasury funds to influence federal elections, injecting many millions of dollars more of unregulated money into federal elections. BCRA responded to the collapse of the FECA regime in a considered and measured way. The law should be sustained in its entirety.

MEMBERS OF CONGRESS THEMSELVES DESCRIBE SOFT MONEY SYSTEM AS CORRUPTING

Although this Court has recognized that little evidence is required to support the self-evident proposition that ``large contributions`` pose a threat of actual or apparent corruption, see Shrink Mo., 528 U.S. at 391, the record overwhelmingly establishes the reasonableness of Congress`s conclusion that soft money had fundamentally undermined public confidence in our democratic system and elected officials. That evidence includes testimony from current and former Members of Congress, current and former party officials, and experts, as well as many thousands of pages of documents, press reports, and studies chronicling how those exploiting the soft money loophole made a mockery of federal campaign finance laws and their goal of minimizing actual or apparent corruption of federal officeholders.

Both in the legislative debates on BCRA and in sworn testimony in this case, Members reported that their constituents had become ``as cynical about government as they have ever been because of the corrupting effects of unlimited soft money donations.`` Simpson Dec. 14 (JA ____); see SA 630-33(K), 1278, 1294-95(L) (quoting numerous Members of Congress). Members themselves described the soft money system as corrupting. Senators Boren, Brock, Bumpers, Feingold, Jeffords, McCain, Rudman, Simon, Simpson, Snowe and Wirth, and Representatives Meehan and Shays, among others, detailed the baneful effects of soft money on the working of our government. Former Senator Rudman described large soft money contributions as ``inherently, endemically, and hopelessly corrupting,`` and stated, ``You can`t swim in the ocean without getting wet; you can`t be part of this system without getting dirty.`` Rudman Dec. 10 (JA____). Given that senior elected officials perceived the political system in which they operated as ``dirty,`` it is scarcely surprising that the public overwhelmingly agreed, or that Congress saw that BCRA was needed to restore public confidence.

CHICKEN LITTLE ASSERTIONS ABOUT THE IMPENDING DEMISE OF POLITICAL PARTIES ARE IMPLAUSIBLE

Contrary to plaintiffs` contention, under the soft money system, political parties did not insulate their officeholders from importuning contributors or sanitize the effect of large contributions. Quite the reverse: the parties frequently encouraged their officeholders to be attentive to their soft money donors` positions on matters of policy, and brought their donors and officeholders together to meet privately. SA 603-15(K), 1269-76(L). Federal officeholders and candidates were routinely informed of the identities of large donors to their parties. In many cases, Members of Congress personally solicited large soft money donations; in other cases, the parties distributed lists of potential and actual donors to officeholders.

Plaintiffs have not made even a colorable showing that the soft money restrictions will impair the ability of political parties to engage in effective advocacy, or to assist their candidates in doing so. Their Chicken Little assertions about the impending demise of political parties are implausible and contrary to experience. As former DNC Chair Donald Fowler (who was also a state party chair) and former RNC Chair William Brock stated, restricting soft money is likely to strengthen both national and state parties -- by encouraging them to reinvigorate their support among numerous smaller contributors and volunteers, rather than rely on a few donors who are willing to write massive checks but who are often more interested in promoting particular federal candidates than in the party`s long-term health.

BCRA SEEKS TO RE-CLOTHE THE EMPEROR BY SUPPLYING AN EFFECTIVE, OBJECTIVE STANDARD FOR WHETHER AN AD IS CAMPAIGN-RELATED

For many years, the ``express advocacy`` test that Buckley fashioned to identify which communications were campaign-related worked reasonably well. Despite isolated instances of circumvention, it was generally understood that ads praising or criticizing federal candidates were required to honor FECA`s disclosure and source restrictions. Beginning in 1995, however, that understanding completely changed. A trickle of marginal abuses became a tidal wave of circumvention. ``Express advocacy`` as a standard for electioneering became worse than irrelevant: it became an object of public derision. Here, for example, is the chair of the NRA`s PAC, speaking in 1997 SA 673-74(K):

Today, there is erected a legal . . . wall between issue advocacy and political advocacy. And the wall is built of the same sturdy material as the emperor`s clothing. Everyone sees it. No one believes it.

Title II of BCRA seeks to re-clothe the emperor by supplying an effective, objective standard for whether an ad is campaign-related. Under Title II, an ad is subject to disclosure and source requirements if it is broadcast, mentions a candidate, is geographically targeted to the candidate`s electorate, and is run in the 60 days before a federal general election or the 30 days before a primary. That bright-line test is the product of objective data and experience, which confirm the common-sense reality that in these carefully limited circumstances, ads naming a candidate are very likely intended to convey-and almost certainly will convey-an electioneering message.

LEGAL STANDARD SEPARATING ``ISSUE ADVOCACY AND POLITICAL ADVOCACY`` IS A ``LINE IN THE SAND DRAWN ON A WINDY DAY``

The development, long after Buckley, of candidate-centered ``issue`` ads quickly destroyed the efficacy of the ``express advocacy`` test as a means of identifying independent campaign expenditures. It is now clear that words of express advocacy are not necessary, or even necessarily desirable, to frame a campaign message. SA 658-64(K), 1296-99(L). Indeed, candidates, whose advertising is all electioneering, hardly ever use such words in their own ads, any more than companies tell consumers to ``buy`` their products. SA 1033(K), 1160 n.114(L). The absence of ``express advocacy`` thus indicates nothing about whether an ad is intended to or does convey an electioneering message. SA 664-75(K),1299-1306(L). That is why the AFL`s political director could comment, during the 1996 campaign, ``If somebody handed me a magic wand and said there is no election law, I would do exactly what I am doing now.`` Clymer, System Governing Election Spending Found in Shambles, N.Y. Times, June 16, 1996, at A1 (quoting Steven Rosenthal). And it is why by early 1997 the Chair of the NRA`s PAC could characterize the legal standard separating ``issue advocacy and political advocacy`` as ``a line in the sand drawn on a windy day.``

Confronted with the collapse of the ``express advocacy`` test as an effective regulatory dividing line, Congress had a choice. It could accept that source and disclosure rules had been rendered a dead letter -- despite this Court`s decisions upholding the constitutionality of such rules when applied to campaign spending. It could create a new statutory definition of ``campaign`` spending that depended on some finding of electoral intent or effect -- but that would surely be attacked as too vague and subjective in application. Or it could rely on available data, and its Members` experience, to frame an objective definition that would address the problem, without imposing even the modest burden of source and disclosure rules on any more speech than was necessary to restore the effectiveness of longstanding rules.

BCRA`S COVERAGE OF NONPROFITS IS NOT ONLY REASONABLE, BUT INDISPENSABLE

This Court has expressly recognized that the basic reasons for limiting corporate and union campaign spending to segregated funds apply to ideological nonprofits -- specifically including the NRA. Beaumont, 123 S. Ct. at 2209-10. Such organizations, ``like their for-profit counterparts, benefit from significant `state-created advantages,``` and their fundraising and political prowess ``show that `political ``war chests``` may be amassed simply from member contributions.`` Id. at 2209 & n.6. If exempt from source and disclosure rules, they could quickly become easy-to-use, hard-to-police conduits for unlimited campaign spending by unions and for-profit corporations. Id. at 2209-10; Austin, 494 U.S. at 664; FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 264 (1986) (MCFL) (nonprofits could ``serv[e] as conduits for the type of direct spending that creates a threat to the political marketplace``). And individuals who support a nonprofit`s basic mission -- or join because membership provides various benefits -- do not necessarily want their funds to be used to support or oppose candidates. See Beaumont, 123 S. Ct. at 2209 n.5. BCRA`s coverage of nonprofits is not only reasonable, but indispensable.

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.

ON THE DOCKET, Vol. II, No. 20 | Released: Thursday, August 7, 2003

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