Court Ruling May Echo for Decades

Posted September 3, 2003 at 6:57pm

Forget the Redskins — the hottest ticket in town this month may well be a seat inside the chamber of the U.S. Supreme Court, which will return a month early to convene a special four-hour session on Monday to consider the merits of the Bipartisan Campaign Reform Act of 2002.

Following a preliminary decision by a U.S. District Court panel earlier this year that struck down some portions of the law and upheld others, the Supreme Court will serve as the final arbiter on the constitutionality of a ban on soft money, new restrictions on campaign-related issue advertising and myriad other changes that Congress made to the existing law last year.

Seating for the high-stakes high court drama is about as difficult to come by as it was in Bush v. Gore, the historic case that decided the 2000 presidential election, and the court has gone so far as to limit the lawyers arguing the case before the nine justices to only five guests each, fewer than are normally permitted.

But no one seems to be complaining.

“I really do think this is an historic case and I’m delighted to see the Supreme Court is treating it as so by interrupting its summer recess and scheduling a very unusual length time to hear it,” remarked Bobby Burchfield, who will argue against BCRA on Monday on behalf of the Republican National Committee.

Don Simon — general counsel for Common Cause, which submitted an amicus brief in the case — concurred and said he’s looking forward to seeing this ongoing debate settled once and for all.

“In a sense, it will be a relief to everyone on both sides to finally definitively get these questions resolved,” said Simon, who called the case the “most important campaign finance case in a generation” and “one of the most significant First Amendment cases in a long time as well.”

“Just as Buckley set the framework for regulation of money in the political process for the 25 years afterwards, I think this case is very likely to set the ground rules for a long time into the future,” Simon said, referencing the landmark 1976 decision that upheld contribution limits and struck down spending limits contained in Congress’ post-Watergate 1974 reforms.

But beyond the importance of the issues at hand or the relief they may feel about the case finally being concluded, defenders and opponents of BCRA are finding little else to agree on these days.

Soft money and BCRA’s electioneering communications provisions — the two most hotly contested sections of the new law — are dissected in painstaking detail in a flood of legal briefs that totaled 1,593 pages, according to one legal expert.

Hard Shift on Soft Money?

Fifteen years after he witnessed the “explosion” of soft money on the front lines of the 1988 presidential campaign, former RNC Chairman Frank Fahrenkopf is wondering how the Supreme Court will handle the soft-money question.

“I think it’s very, very important. It directly impacts the national parties to such an extent,” Fahrenkopf explained this week in an interview, during which he recounted the origins of soft money.

As Fahrenkopf tells it, an enterprising Democratic fundraiser named Robert Farmer — now Sen. John Kerry’s (D-Mass.) presidential campaign treasurer — was working for Democratic presidential candidate Michael Dukakis in the 1988 campaign when he “looked at the law and found a loophole … found they could raise large amounts of money, $100,000 at a whack” so long as it was ostensibly used for “party-building” activities.

Not wanting to be outfoxed, Fahrenkopf said Republicans — who until that time had never allowed the RNC to accept contributions in amounts larger than $10,000 — begrudgingly followed suit, and George H.W. Bush inaugurated a new level, Team 100 fundraisers.

By 1996, with the proliferation of party-funded issue ads, soft money took on a life of its own, growing from roughly 17 percent of the national party money in the 1991-92 election cycle to nearly 40 percent of national party money, nearly $500 million, by the 2000 cycle.

Proponents of BCRA, however, argue that soft money has eroded the political process.

In a brief filed last month on behalf of the Congressional authors of the law, attorneys Roger Witten and Seth Waxman note that prior to BCRA, “corporations, unions, individuals and political parties routinely evaded long-established contribution limits and source restrictions” and used “hundreds of millions of dollars” to improperly influence federal elections in exchange for access to politicians.

“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 laws,” the defendant’s brief argued.

But McConnell’s attorneys flatly reject any “quid pro quo” arguments, stating in their brief that “the provision cannot implicate the governmental interest in preventing actual or apparent quid pro quo corruption, since it regulates only donations to and disbursements by political parties, rather than federal officeholders or candidates.”

Beyond that, they argue, BCRA’s soft-money provision “violates the First Amendment and can be invalidated on that basis alone.”

Fahrenkopf is hoping the Supreme Court might accept a more moderate approach to fixing the soft-money problem — perhaps limiting soft money or doing more to ensure that it’s only spent on true party-building activities — rather than banning it outright.

Like Burchfield, he believes such a decision would be disastrous for the party committees and the American electorate.

“The reason the political parties are in this case, for the most part, is not necessarily because it makes it more difficult for them to raise money,” Burchfield said. “It really is shifting the center of gravity in politics away from the political parties — a broad-based, moderating, mediating influence on the political debate — to single issue special interest groups.”

Issue Ad Wars

In late October 1996, an obscure tax-

exempt group sponsored the following television advertisement in Arkansas in the closing days of a hotly contested open-seat election for Senate: “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.”

Two years later, Oregon voters saw this ad on the air just before the general election: “The people of America should be running our government. That’s the way it was set up in the first place. The problem is the special interests and the paid lobbyists who control the Washington politicians. The answer is term limits. Term limits replace Washington insiders with new people who reflect community interests, not politics as usual. Molly Bordonaro has signed the pledge to limit her terms in Congress. David Wu refused. Call David Wu and tell him to sign the US Term Limits Pledge.”

These ads — just two examples culled from the thousands that make up the battleground of modern political warfare — are prime illustrations that each side has pointed to in support of their argument on what is undoubtedly the most hotly contested section of BCRA.

As written, the law prohibits labor unions, businesses and most nonprofits from making direct, unregulated expenditures on “electioneering communications,” defined as broadcast messages that refer to a federal candidate by name and appear in that candidate’s home-

district media market within 30 days of a primary election or 60 days of a general election.

Corporations and unions may sponsor ads during that pre-election timeframe if money from a fully disclosed, separate segregated fund, such as a political action committee, is used.

Defenders of the law say the Bryant ad vividly demonstrates the loophole that has been widely exploited since the Supreme Court in 1976 created the express advocacy test that allowed regulation of ads containing the so-called “magic words” of clearly made statements of support or opposition to a candidate, such as “vote for” or “vote against.”

The Bryant ad appeared on television on the eve of the election, unmistakenly named the particular federal candidate, targeted the candidate’s electorate, and yet because it did not contain any of the “magic words,” it was treated as an unregulated issue ad that left Arkansas voters in the dark when it came to identifying the financial backers, who paid $300,000 for the media blitz.

No doubt exists that the use of issue ads has exploded. During the 1996 election cycle, about $135 million to $150 million was spent by organizations on multiple broadcasts of about 100 separate issue advertisements; in the 1998 cycle, about $250 million to $340 million was spent by 77 organizations on broadcasts of 423 separate issue advertisements; and during the 2000 cycle, more than $500 million was spent by 130 groups on 1,100 separate issue advertisements.

Unlike their arguments before the special, three-judge lower court last year, neither side is planning to show any ads to the nine justices during Monday’s oral argument.

The high court frowns on the use of such visual aids, but both sides have included ad storyboards and CDs in their briefs to make their points.

“It is now clear that words of express advocacy are not necessary, or even necessarily desirable, to frame a campaign message. 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,” the Congressional defenders of the law noted in a brief authored by former Solicitor General Seth Waxman.

To combat the corruption that may arise from this growing loophole, Congress enacted a clear, bright line test.

But that very provision strikes at the heart of democracy, argue the plaintiffs, who, led by attorney Floyd Abrams, portray the electioneering communication restrictions in the bleakest of terms.

The new provisions “impose draconian restrictions on the most vital speech in our representative democracy: speech about public issues and public officials. In a nation that so highly values and so passionately protects political discourse, it is difficult to conceive of a more constitutionally threatening sort of legislative intrusion than one that so stifles debate at the very core of the First Amendment,” Abrams wrote on behalf of the primary plaintiffs challenging the statute.

The Wu term-limits ad is just one of many that show how far the law has overreached. “Though it may seem unthinkable that such core political speech could be the subject of criminal sanctions, Americans for Term Limits (the group that sponsored the ad) would be subject to such sanctions for airing the same ad today,” Abrams wrote.

The Congressional defenders retorted that “what really seems unthinkable about this ad is that plaintiffs would seriously suggest that when broadcast in Wu’s district, just before an election, it might have had no electioneering purpose or effect.”

But the most provocative attack on the provision in the legal briefs comes from the National Rifle Association, which in the 2000 cycle paid for more than 300,000 minutes of televised speech, more than all issue advocacy groups and unions combined.

BCRA’s requirement that PAC money must be used “artificially impedes the ability of ordinary Americans of modest means to participate effectively in our democracy. And that is the measure’s avowed purpose; it cannot be intelligibly understood except as a naked effort to suppress political speech for its own sake,” wrote the NRA’s general counsel, Charles Cooper.

But Cooper, who went on to compare BCRA to the notorious Alien and Seditions Act of 1798, will not be speaking during Monday’s oral argument due to apparent infighting among the team of plaintiff’s attorneys, according to press reports.

One key area to watch is whether any of the justices delve into the academic studies proffered by BCRA supporters that became the subject of a fierce attack by the plaintiffs in the lower court.

In a nutshell, two reports titled “Buying Time” funded by the Brennan Center for Justice concluded that the vast majority of advertisements aired in the 60-day window before Election Day — 93 percent in 1998 and more than 99 percent in 2000 — were not what reform advocates viewed as “genuine” issue advocacy but were instead what reformers called “sham” issue advocacy. But plaintiff’s attorneys, led by Abrams, succeeded in convincing each of the three lower court judges that the numbers in the reports were flawed. Those judges reached different conclusions on the impact of the findings. But the plaintiffs continued the attack in submitting briefs to the high court.