News
Constitutional Law
Feb. 21, 2002
Campaign Finance Will Survivie Litigation, Experts Predict
WASHINGTON - Like previous campaign finance reform measures, the landmark legislation now pending in Congress will face almost immediate court tests if it becomes law.
But supporters contend the legislation was carefully drawn to survive court scrutiny.
"Before the ink is dry, there will be more plaintiffs than you can count," Kenneth Gross, a former Federal Election Commission lawyer, said.
The most likely scenario, Gross said, is that parts of the expansive law sent to the Senate, and possibly soon heading for the president's pen, may survive a court battle while other parts of the bill could be ruled unconstitutional.
As in a previous Supreme Court case in 1976, parts of the law that might be seen to encroach on the First Amendment's free expression provisions will get the most court scrutiny.
University of Virginia political analyst Larry Sabato said the most obvious Achilles' heel of the Shays-Meehan version of the bill passed by the House last week is the ban on the use of corporate and union treasury money for radio and television ads that mention a federal candidate within 60 days of a general election or 30 days of a primary.
Unions and corporations still can pay for these ads with political action committee money. But most won't because of the high cost of commercial air time compared to the relatively sparse funds in political action committee accounts, Sabato said.
"What that does is effectively limit what can be aired," he said.
But anything that restricts the ability of unions and special interests to speak out on issues could be alleged as a violation of their First Amendment rights.
Jan Baran, a lawyer who represents the U.S. Chamber of Congress, which has threatened to sue over any new laws denying soft-money spending, agreed the advertising provision is vulnerable.
But Baran insisted that lawsuits also could challenge more than just the "problematic" ad-spending provision.
If the law cracks down on contributions to state and local races, it could be challenged on grounds of federalism; opponents might complain that federal election law shouldn't interfere with states' rights, Gross said.
Ben Bycel, policy director and legal counsel for watchdog group Common Cause, predicts that reformists will be victorious in the legal arena regardless of the arguments at the center of litigation attempts.
"We didn't write a law just to lose in court," Bycel said. "Courts have never protected soft money."
Sabato said that while courts have not supported severe restrictions on campaign contributions and political spending, judges historically have been in favor of some restrictions aimed at preventing the appearance of corruption.
Election law experts point to the 1976 Supreme Court case Buckley v. Valeo, a Watergate-era matter that never mentioned unregulated soft money.
According to an analysis by Stanford University's Hoover Institution, the appellants in Buckley had argued that the Federal Election Campaign Act of 1971 violated the First Amendment's protections for free expression by limiting the use of money for political purposes.
The majority stated, "The First Amendment requires the invalidation of the Act's independent expenditure ceiling, its limitation on a candidate's expenditures from his own personal funds, and its ceiling on overall campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate."
Thus was born unregulated "soft" money spending intended for party-building purposes.
In the same decision, the high court said limiting contributions to candidates was acceptable and constitutional.
But Chief Justice Warren Burger dissented from that view.
"In my view, the Act's disclosure scheme is impermissibly broad and violative of the First Amendment as it relates to reporting contributions in excess of $10 and $100," he wrote. "The contribution limitations infringe on First Amendment liberties and suffer from the same infirmities that the Court correctly sees in the expenditure ceilings."
A new campaign finance law, as envisioned by reformers in Congress, would ban "soft money" contributions, which reached the half-billion dollar mark in 2000.
The Shays-Meehan legislation passed by the House last week and sent to the Senate also would limit fundraising and spending by state and local political parties and treat "issue" ads as campaign ads. Political analysts say that these ads, mostly by unions and other special interests, have had a major impact on the last several election cycles.
However, the Shays-Meehan bill does raise limits on individual contributions to Senate and presidential campaigns to $2,000, though House members will maintain a $1,000 contribution limit. Reform opponent Sen. Mitch McConnell, R-Ky., has said he likes that provision - but he still plans to sue if Bush signs the legislation.
The new restrictions, if made law, won't take effect until after Election Day 2002. Bush, not wanting to enrage campaign finance reform pilot Sen. John McCain, R-Ariz., a potential 2004 opponent for the Republican presidential nomination, may sign the legislation into law.
Sabato said it's unclear how campaign finance restrictions would harm the two major parties. Republicans, who receive a slightly higher amount of funding from corporations, assume they will be hardest hit and have vigorously fought reform efforts they see as primarily benefiting Democrats.
But Sabato said that isn't necessarily the realistic outcome of reform laws.
"Both parties will be hurt," he said. "From what I've heard, their lawyers will find ways around the new law. It's just another finger in the dike."
Bycel said people always find ways to circumvent laws.
"No law is loophole-free," Bycel said. "Does that mean you stop passing laws? The issue is whether we will enforce the law."
New litigation likely will go immediately into U.S. district court here, with plaintiffs - possibly to include the special interest groups, unions and corporations - suing the Federal Election Commission, Gross said.
Litigants would face a special panel of three federal judges from district and appeals courts. The judges would hear arguments, and any appeals would be taken up by the Supreme Court.
With the glut of possible litigation, Baran predicted that election law representation will be a growth industry.
"There aren't that many of us," Baran, a former chair of the American Bar Association's standing committee on election law, said. "[Campaign finance reform litigation] is going to expand our bar."
The Associated Press contributed to this story.
#336924
James Gordon Meek
Daily Journal Staff Writer
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com