Magic Words

Rosen, Jeffrey
September 2003
New Republic;9/29/2003, Vol. 229 Issue 13, p16
At the Supreme Court, after a four-hour marathon of oral arguments about the McCain-Feingold campaign finance law --officially known as the Bipartisan Campaign Reform Act of 2002, or BCRA -- only one thing was clear: Unless the Court wants to reconsider three decades of its own precedents, it should uphold most of the campaign finance reform bill without complaint. The morass of current campaign finance regulations results from the Court's landmark 1976 decision in Buckley v. Valeo, which held that Congress could regulate contributions by donors far more extensively than expenditures by candidates. Two years after Buckley, the Federal Election Commission (FEC) endorsed a legal loophole that allowed parties to spend an unlimited amount of "soft money" -- that is, unregulated donations from individuals, corporations, and unions exceeding the federal contribution limits. Soft money was originally supposed to be spent on party-building and other activities independent of specific federal campaigns. But, in 1996, the national parties, corporations, and unions began to use soft money to fund campaign ads masquerading as "issue ads" -- that is, ads that praised or attacked federal candidates without "expressly advocating" their election or defeat, as prohibited by Buckley. BCRA prohibits the national political parties from receiving or spending any soft money, and it also restricts state political parties from receiving or spending soft money for any election in which a federal candidate appears on the ballot. As for the restrictions on the state parties' use of soft money, it's possible to imagine a state election where an unopposed federal candidate appears on the ballot and the state party wants to donate soft money for entirely state-related issues -- such as ads supporting Proposition 209, the anti-affirmative-action amendment in California.


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