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LII Backgrounder on the Bipartisan Campaign Reform Act Cases

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The Bipartisan Campaign Reform Act (pdf) was signed into law in March of 2002. On the same day that BCRA became official federal policy, Senator Mitch McConnell and the National Rifle Association ("NRA") both filed complaints, challenging the constitutionality of the bill. The cases were assigned to a district court of three judges - District Court Judge Colleen Kollar-Kotelly, District Court Judge Richard J. Leon, and Circuit Court Judge Karen LeCraft Henderson. In the wake of numerous amicus briefs, 1,676 pages of briefs, and over 100,000 pages of witness testimony, the District Court commenced oral arguments on December 4, 2002 and filed their final opinion on May 1, 2003. Parties on both sides immediately began the appeals process to the Supreme Court. To accommodate the large number of parties, as well as the need for a quick and appropriate ruling, the Court scheduled oral arguments in McConnell v. Federal Election Commission to commence on September 8, 2003, a month before the 2003-2004 term officially began. On December 10, 2003, the Supreme Court delivered their opinion.

BCRA Issues and findings of the District Court and the Supreme Court

"Soft Money" Bans

The major impact of BCRA extends from its ban on soft money contributions to parties, which were previously free of regulations applied to candidate contributions. The authors and supporters of the bill had long been conscious of the growing use of unregulated funds in federal elections and saw the need for stricter laws to close the loopholes. BCRA accomplishes this in four ways:

  • National parties are banned from soliciting, receiving, directing, transferring, and spending soft money.
  • State and local parties are banned from spending soft money for any communications that identifies a candidate for federal office and either promotes or attacks said candidate.
  • Federal officeholders and candidates are banned from soliciting, receiving, directing, transferring, and spending soft money in connection with any local, state, or federal election.
  • State officeholders and candidates are banned from spending soft money for any communications that identifies a candidate for federal office and either promotes or attacks said candidate.

The District Court upheld all of these policies as being constitutional, essentially supporting an absolute ban on the usage of soft money in federal election activity. BCRA also stipulates the Levin Amendment (pdf), a law that offers state and local political parties opportunities to use soft money for "generic party activities", such as voter registration and voter identification. However, the parties may do so only with certain restrictions, including limitations on the amount and source of funds, and the specific use of the funds. The Court overturned this provision, ruling that the restrictions placed on the parties were unconstitutional.

The Supreme Court upheld these provisions.

Noncandidate Expenditures

The next section of the BCRA addresses the usage of funds by individuals, corporations, organizations and any party other than officeholders, candidates, and political parties.

Electioneering Communication

Other than issues with the usage of soft money as outlined above, the other major problem that BCRA attempts to resolve is that of so-called "issue advertisements" sponsored by noncandidate organizations and individuals. Before addressing these advertisements however, the authors of the bill first had to strictly define what was encompassed in an "issue ad", or as they called it – electioneering communication.

The bill proposes a primary definition which classifies advertisements as electioneering communications if they:

  • are disseminated by cable, broadcast, or satellite;
  • refer to a clearly identified candidate for Federal office;
  • are disseminated within certain time periods before an election;
  • and are targeted toward the relevant electorate (except in the case of Presidential or Vice Presidential-focused advertisements).

Anticipating that this definition might be overturned by a court (and it was), the authors provided a backup definition which was subsequently upheld with the exception of one clause. This new definition reads:

"any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate)".

Corporation and Labor Union Restrictions

With a definition of electioneering communications set, the BCRA then proceeds to advise parties on various restrictions dealing with such communications. First, the bill prohibits both corporations and labor unions from using funds from their general treasuries to sponsor any applicable communication. It specifically notes that these organizations are still permitted to form separate, segregated funds known as PACs to finance these types of advertisements. Although these accounts are subject to source and amount limitations as per collection, the expenditure of these funds is not limited. As this law codifies current practice, the District Court upheld it as being constitutional.

Nonprofit Corporations

The bill does however, provide an exception for nonprofit corporations, so that they may fund electioneering communications from their general treasuries. The Court upheld both the Snowe-Jeffords Provision and the Wellstone Amendment, ensuring that only nonprofit corporations fulfilling certain requirements (MCFL requirements) would be permitted to freely sponsor those advertisements. These organizations are still subject to certain disclosure requirements and are prohibited from receiving funds from corporations or labor unions.

Disclosure and Coordination Restrictions

This section of the BCRA amends certain parts of the FECA that dealt with disclosure and coordinated expenditure issues. The District Court upheld disclosure requirements for expenditures above a certain threshold relating to electioneering communications, but concluded that the challenge to reporting requirements for independent requirements was nonjusticiable at the time. It also upheld the classification of coordinated electioneering communications as contributions, thus subjecting those funds to limits prescribed elsewhere in the bill.

The electioneering communication provisions were upheld by the Supreme Court.

Millionaire Provisions

Although soft money and electioneering communications are the two main issues covered in the BCRA, the bill also amends or clarifies laws on a few other subjects. One of these policies allows candidates to raise funds through increased contribution limits if their opponent’s self-financed personal fund amount exceeds a certain amount. The District Court, however, unanimously concluded that a challenge to this provision was unjusticiable at the time.

The Supreme Court agreed.

Broadcast Restrictions

The BCRA also establishes certain requirements for television broadcasts. The first requires that all advertisements clearly identify the sponsor of the communication and offer certain pertinent information about said sponsor. The second provision amends a 1972 law which required broadcast stations to sell candidates the "lowest unit charged". Under the BCRA, candidates are only eligible for this price if they certify that their broadcast will not make any references to another candidate for the same office. The District Court upheld the first provision as constitutional but deemed a challenge to the second one to be nonjusticiable.

The Supreme Court affirmed.

Increased Contribution Limits

The Court also concluded that a challenge to a provision increasing the contribution limits was nonjusticiable. The new law would essentially double all of the existing limits.

The Supreme Court agreed.

Prohibition of Contributions by Minors

In one of the few unanimous decisions by the District Court, the provision banning all contributions by minors was overturned and ruled unconstitutional. The law had been written so as to block parents from funneling funds through their children to political parties and candidates, but the District Court noted that the law was too broad and an unacceptable solution.

The Supreme Court affirmed.

Public Access to Broadcasting Records

Lastly, the BCRA requires broadcast licensees to collect and disclose records of any requests to purchase broadcast time "by or on behalf of a… candidate for public office" or that is related to "any political matter of national importance." The District Court ruled this provision unconstitutional.

The Supreme Court found that these provisions were not "facially unconstitutional," and that an argument can be made when the new rule is applied.

 
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