Judging Campaign Finance

Normally the justices of the U.S. Supreme Court are still relaxing during September. This year the high court is getting its fall season off to an early start. Barely a week from now, the justices will hear four hours of oral arguments in one of the most fateful cases the court has heard in many years.
They will decide how much of the McCain-Feingold campaign finance reform law is to be allowed to remain in force and how much will be struck down under any of several constitutional theories being used to attack it.
The case deals with the most fundamental aspects of American democracy: the ground rules under which elections are conducted and how much, if any, separation Congress can require between big money contributions and the policy decisions they are meant to influence. To put it bluntly, for the court to strike down significant parts of the Bipartisan Campaign Reform Act of 2002, it will have to say -- in effect, if not explicitly -- that the Constitution requires federal impotence in the face of the all-but-overt culture of influence peddling that now dominates U.S. politics.
Opponents of the reform law often characterize it as a sweeping and unprecedented effort to restrict political speech by corporations, advocacy groups and political parties. The reality is that federal law has for nearly a century banned corporate contributions to political campaigns. And it is the recent effort to shred that principle -- not the reform act's effort to restore it -- that is the danger. In the past few years, particularly since 1996, corporations, labor unions and interest groups have dramatically reinserted their coffers into the political system. Before McCain-Feingold, they were pumping unlimited and unregulated "soft money" into the political parties, which in turn were spending that money on advertising that nobody would confuse with anything other than electioneering. Yet, for technical legal reasons -- because of the names of bank accounts, because the advertisements don't specifically urge the election or defeat of specified candidates, and because the money was supposedly for "party building" -- the law before the reform act of 2002 was powerless to stop it. The result was that nobody with a straight face could contend that U.S. elections were free of corporate and labor money; they were overflowing with it.
The reform act, for all the rhetoric of those who oppose it, represents nothing more than a modest effort to restore the badly eroded principle that candidates must raise and spend only contributions from individuals. It prevents parties from raising and spending soft money. And it requires that advertisements that promote or oppose identified candidates within the immediate time frame of a federal election do so with regulated, "hard money" contributions -- irrespective of whether they do so explicitly or couch their support or opposition in supposed discussions of an "issue." To strike down this campaign reform act would require reading the Constitution as permitting only laws so toothless as to be ineffective.