Plaintiffs in the legal challenge to last year's campaign finance reform law say that it may be too late for the U.S. Supreme Court to tackle the case this term, but a lower court's ruling — expected any day — could stay a soft money ban for now.
Legal observers had hoped that a three-judge U.S. District Court panel would have handed down its ruling by now as to whether a federal ban on unrestricted political party donations and a limit on so-called issue ads is constitutional. Oral arguments were made in December and regardless of the outcome, the high court will take up the case as dictated by the law's provisions.
"Like everyone else, we’re waiting for the decision. There’s a lot of speculation right now," said Jeffrey Mazzella, vice president of legislative affairs for the Center for Individual Freedom, one of more than 90 plaintiffs in McConnell v. the Federal Elections Commission, the legal challenge to the Bipartisan Campaign Reform Act of 2002.
BCRA, which came out of congressional campaign finance reform bills sponsored by Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., and Reps. Christopher Shays, R-Conn., and Marty Meehan, D-Mass., went into effect on Nov. 6, 2002, the day after last year's congressional elections.
Reluctantly signed into law by President Bush, BCRA states that political parties may no longer raise and spend the millions of dollars given to them by big money donors and special interest groups. It also prevents independent organizations from running television ads advocating candidates 60 days before the general election and 30 days before the primary.
Opponents say the law restricts political speech and is a violation of the First Amendment. They also say that soft money won’t go away, rather it will merely stay in the hands of the independent organizations that generate it. Those groups will still be able to spend the money legally for Republican and Democratic causes and be able to yield more political power as a result.
Proponents of the law say the soft money ban will cut down the gross amount of money flooding the political system and reduce the level of influence big-moneyed interests have wielded in recent presidential and congressional campaigns.
Challengers include chief plaintiff Sen. Mitch McConnell, R-Ky., and a wide range of special interest groups, including the American Civil Liberties Union and the Christian Coalition as well as the National Rifle Association and a number of prominent labor unions, all of which help raise soft money and put out issue ads during election time.
The FEC is being assisted in its defense by McCain and Feingold, as well as a number of pro-campaign finance reform groups, like Democracy 21 and Common Cause.
Don Simon, president of Common Cause, said he is confident that the judges will uphold the law, and he believes it is already having a positive effect on the political landscape.
"I think it makes a huge difference that the world of soft money has come to an end," Simon said. "The law took a half a billion dollars off the political table, and it makes a whole lot of difference in the way the process works, and for the confidence the American people have in the system."
Reed Cox, assistant general counsel for the Center for Individual Freedom, doesn’t agree. He said not only does the new law impinge on freedom of speech, but directly imposes federal law on state elections since soft money is often used for get-out-the-vote and registration drives before Election Day.
"Now, campaign speech is a felony — and that’s pretty scary considering that the First Amendment was designed to protect political speech," he said.
Aside from the court challenge, both sides have been battling it out at the bureaucratic level, as the FEC is in charge of writing the rules for the new law. Pro-reformers say they are disappointed with the way the law has been interpreted by the commission, and blame the political nature of the panel — three Republicans and three Democrats — for the loopholes they say have been created in the process.
"I think there are serious problems," said Simon. "I think they are violating the intent of Congress. There are just too many members of the commission who don’t believe in the law in the first place and they let their personal political views get in the way."
The rule-making procedure connected to the law was completed by the FEC in December, but a number of the measures already are being challenged by BCRA’s congressional sponsors, said Bradley Smith, one of the commissioners openly opposed to the new law. He said that because its sponsors were forced to make concessions to get BCRA passed in the first place, it is not as strict as McCain and the others might like.
"There is a lack of courage or willingness to accept the political reality," he said.
In the meantime, the commission will be completing new rules on whether host city committees for the national Democratic and Republican conventions can spend soft money on the events, and whether tougher contribution limits can be placed on leadership political action committees.
Smith said all of it could be turned on its head as a result of the district court ruling, which could come any time.
"That’s the wild card," he said, adding that a temporary stay on the restrictions "all depends on how solid [the judges] feel about their decision."