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Court challenge likely if McCain-Feingold passes

Sen. Mitch McConnell is perhaps the most outspoken critic of McCain-Feingold's ban on soft money: "When the government tries to restrict the voices of citizens' groups ... the chance of success under the First Amendment is virtually nil."

By David Williams
CNN

(CNN) -- The McCain-Feingold campaign finance reform bill that passed the U.S. Senate last week is still a long way from becoming law. The House has not scheduled a vote on the measure, and if it passes there is no guarantee that President Bush would sign it.

Opponents of the bill are already preparing strategies to challenge the reforms in court if they do become law.

The bill, in its current form, would double to $2,000 the cap on so-called "hard money," or direct donations to candidates during any given two-year campaign cycle, and eliminate "soft money" donations to the political parties. Those donations are currently unlimited.

DOCUMENTS • Read the U.S. Supreme Court decision Buckley v. Valeo (FindLaw) • Read the Federal Election Campaign Act (FindLaw) • Read the law limiting individual donations to $1,000 (FindLaw)  VIDEO Sen. John McCain, (R) Arizona, and Sen. Russ Feingold, (D) Wisconsin, react to the approval of their bill Play video (QuickTime, Real or Windows Media)  ALSO • McCain-Feingold supporters ready for House battle • McCain and McConnell -- the rivalry continues  MESSAGE BOARD Campaign finance reform

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It would also restrict private groups from airing issue ads that target a specific candidate in the 60 days before a general election and the 30 days before a primary.

Sen. Mitch McConnell, R-Kentucky, a key opponent of the McCain-Feingold bill, says those provisions are unconstitutional.

"When the government tries to restrict the voices of citizens' groups in proximity to an election, the chance of success under the First Amendment is virtually nil," he said.

McConnell met to discuss legal strategy last week with critics of the measure ranging from the American Civil Liberties Union to the Christian Coalition.

Supporters of McCain-Feingold say the courts are unlikely to suppress issue ads unless they specifically target a candidate.

"Money used for issue ads, as a general rule, can't be subject to regulation. So, the question becomes how do you draw the line between campaign ads on the one hand and issue ads on the other hand?" said Don Simon of the watchdog group Common Cause.

Both sides look to the landmark 1976 Supreme Court decision Buckley v. Valeo for the answer to that question. The case involved a challenge to the Federal Election Campaign Act of 1971, which was amended in 1974 in response to the Watergate scandal.

The law capped individual contributions at $1,000 per candidate per election and said political action committees could give only $5,000 to a candidate. It required candidates to keep detailed records of all donations over $10.

The law also said that individuals could make only $1,000 in independent expenditures to promote a specific candidate and said that candidates could spend only $1,000 of their own money on an election.

Supporters said the reforms would help reduce the appearance of improprieties, but James L. Buckley, Republican senator from New York, and Eugene McCarthy, former Democratic senator from Minnesota and sometime antiwar presidential candidate, filed a lawsuit contending the key provisions were unconstitutional. The defendant was Francis R. Valeo, secretary of the U.S. Senate.

The Supreme Court upheld the contribution limits, saying it was only a marginal restriction on political expression.

"A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues," the court wrote.

"While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor."

The court said that the contribution rules simply force candidates to raise money from a larger number of supporters.

On the other hand, the court ruled that the caps on spending were a violation of the First Amendment because they "would appear to exclude all citizens and groups except candidates, political parties, and the institutional press from any significant use of the most effective modes of communication."

"These provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate."

The court has never addressed the issue of soft money contributions to political parties, which have become a major part of political fund-raising in the years since the Buckley decision.

"What you are doing is trying to take concepts that were developed in a much simpler day and try to play them out when these campaign finance techniques have gotten much more complex," said University of Virginia law professor Daniel Ortiz. "So, it's not clear what kind of guidance Buckley gives."

The Supreme Court has also changed dramatically in the 25 years since the case was decided. Of the nine justices on the court at the time, the only ones who remain are Chief Justice William H. Rehnquist, who was an associate justice, and Justice John Paul Stevens. Stevens did not participate in the case.

If McCain-Feingold becomes law, the expected challenge would be on a fast track, skipping the court of appeals to get to the Supreme Court. The high court could get the case in the middle of the 2002 election campaign.

CNN Senior Washington Correspondent Charles Bierbauer and Ian Christopher McCaleb contributed to this report.

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April 2, 2001
McCain-Feingold foe vows court battle if reform measure becomes law
April 1, 2001
Hagel's 'soft money' limits fall in Senate
March 27, 2001
Senate OKs 'real setback' to McCain-Feingold bill
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Senate OKs first change in campaign finance bill
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Tireless Granny D supports campaign finance bill
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McCain, Feingold rally supporters before campaign finance debate
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Federal Election Commission
  • Appendix 4: Brief History
  • Campaign Finance Law Resources
Election and Campaign Finance Law
Sen. Russ Feingold, D-Wisconsin
Sen. John McCain, R-Arizona

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