American 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.
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.
The Campaign Media Guide: 2004 Election Cycle and Beyond
The Campaign Legal Center has recently published The Campaign Media Guide , a guide on candidates' and citizens' rights during the 2004 election season. The Guide also details the political broadcasting obligations of broadcasters during election season and throughout the year. This Guide includes new Federal Communications Commission and Federal Election Commission regulations regarding the application of the new campaign finance laws (the Bipartisan Campaign Reform Act of 2002 or McCain/Feingold) as well as other new requirements and rules. This Guide is designed to be a hands-on resource for all those involved in political broadcasting, including advertising and news coverage, during federal elections - the candidates, media buyers, advertisement designers, the broadcasters, and citizen organizations alike.
This Guide has been distributed to all federal candidates this election cycle (both primary and general election competitive candidates), as well as to state political party leaders, Members of Congress, broadcasters, academic institutions and citizen organizations.
Provided authorship attribution to the Legal Center is maintained, the Legal Center allows anyone the right to reproduce and print the Guide if done without alteration.
FEDERAL CAMPAIGN FINANCE LAW RESOURCES
Laws
Federal campaign finance law consists of the Federal Election Campaign Act of 1971 (as amended in the years following its initial enactment, including by the Bipartisan Campaign Reform Act of 2002), the presidential public financing statutes, various provisions of Title 18 of the United States Code (e.g., the ban on political fundraising on federal property), and certain sections of the Internal Revenue Code (e.g., the prohibition on intervention in political campaigns by 501(c)(3) groups and IRS disclosure requirements for Section 527 political organizations).
The Federal Election Campaign Act of 1971, as amended, is codified largely in title 2 of the United States Code. The presidential public financing statutes are codified in title 26 of the United States Code. Internal Revenue Code provisions addressing campaign activity likewise appear at title 26 of the United States Code.
The Federal Election Commission (FEC) has prepared a compilation of these laws. Among other things, the current version of this compilation contains footnotes highlighting areas in which the Bipartisan Campaign Reform Act amended or added to the Federal Election Campaign Act.
The FEC issues regulations to implement the federal campaign finance laws which it is charged with enforcing (i.e., the Federal Election Campaign Act, as amended, and the presidential public financing statutes). These regulations -- which have been updated to reflect changes to federal campaign finance law made by the Bipartisan Campaign Reform Act -- appear at title 11 of the Code of Federal Regulations.
Bipartisan Campaign Reform Act of 2002 - Statute and Rulemakings
To curtail "soft money" abuses, the Bipartisan Campaign Reform Act of 2002 amended and added provisions to the Federal Election Campaign Act of 1971. While these changes are incorporated to the Federal Election Campaign Act (title 2 of the United States Code) in the FEC's published compilation of federal campaign finance laws (see above), legal documents and other sources sometimes cite specifically to sections of the Bipartisan Campaign Reform Act.
The FEC undertook a series of rulemakings in the second half of 2002 to implement the Bipartisan Campaign Reform Act, including rulemakings on soft money, electioneering communications, coordinated and independent expenditures, consolidated reporting, contribution limitations and prohibitions, the "millionaires' amendment," and disclaimers/fraudulent solicitations/personal use of campaign funds. The result was the adoption of new federal campaign finance law regulations now included in title 11 of the Code of Federal Regulations (see above). The agency also published the final rules and an "Explanation and Justification" for each Reform Act rulemaking in the Federal Register.
Federal campaign finance law is often interpreted and applied in the context of FEC Advisory Opinions. The Advisory Opinion process is the mechanism by which individuals and groups seek guidance from the FEC as to the legality of campaign finance activity they wish to undertake.
Federal campaign finance law has often been the subject of litigation. Federal courts at all levels have ruled on such matters as the constitutionality of federal campaign finance laws, the FEC's interpretation of those laws, the Commission's enforcement practices and the ability of individuals who have filed complaints with the Commission to challenge dismissal of, or inaction on, those complaints. Currently, the U.S. Supreme Court is considering the constitutionality of the Bipartisan Campaign Reform Act if 2002 in McConnell v. FEC .
Materials on the Bipartisan Campaign Reform Act of 2002
FCC: The Federal Communications Commission (FCC) has launched an online database that allows political advertisers to determine whether a proposed advertisement would reach enough people to trigger the "electioneering communications" provisions of the Bipartisan Campaign Reform Act.
Campaign Legal Center: The CampaignLegalCenter and other sources have likewise prepared materials explaining various components of the Bipartisan Campaign Reform Act.
Congressional Research Service (CRS): The Congressional Research Service has prepared a document listing key provisions of federal campaign finance law and providing a chronology of how the law took shape.
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.
"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.
Election Law Journal: "Free Air Time: The Continuing Reform Battle"
In this article for the Election Law Journal, Senator John McCain writes about the Political Campaign Broadcast Activity Improvements Act, and how it is a complement to the Bipartisan Campaign Reform Act of 2002.
"The Reform Act addressed the corrupting influence of large campaign contributions. [This] new measure focuses on the "demand" side of the campaign equation, setting out to reduce candidates' need to secure resources through all-consuming fundraising activities while increasing the flow of political information through broadcast media."
The article discusses the need for free air time for federal candidates and describes in detail the Political Campaign Broadcast Activity Improvements Act.
What You Need to Know about Political Advertising - Campaign Media Guide for 2002 Election Cycle
The Campaign Legal Center released a practical guide for federal candidates and citizens on the rights and obligations of broadcasters in the 2002 general election cycle. The Guide, " What You Need to Know about Political Advertising ," details the rules broadcasters are obligated to follow in covering campaigns and handling advertising buys by candidate campaigns. The Guide also directs citizens to sources of information on issue ad groups running campaign advertisements in their local markets. There are also practical examples of the ways in which broadcasters sometimes violate the law, and clear remedies - whom to call, where to file a complaint, etc.
" What You Need to Know about Political Advertising " was sent to every federal candidate in the general election, as well as to citizen activist groups nationwide. The 2002 Guide is downloadable from our website in pdf format. Click here to view the 2002 Media Guide in its entirety.
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.
"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."
