In McConnell v. Federal Election Commission, decided December 10, 2003, the United States Supreme Court affirmed Congress' most recent attempt to regulate the influence of campaign contributions on elections. The new law plugs the "soft money" loophole and restricts issue advertising around the time of elections.

In 2002, Congress sought to address developments in campaign finance in the years since the Court's decision in Buckley v. Valeo, 424 U. S. 1 (1976), which laid out the basic legal ground rules: that campaign finance is a form of political expression protected by the Free Speech and Free Press clauses of the First Amendment, but that Congress may regulate political corruption which amounts to directly buying votes (rather than trying to influence voters by purchasing the dissemination of ideas).

Years of election abuses lead to the Bipartisan Campaign Reform Act of 2002 ("BCRA"), which amended the Federal Election Campaign Act of 1971 ("FECA"), the Communications Act of 1934, and other portions of the United States Code. The BCRA is popularly known as the "McCain-Feingold" act.

Conservative pundits predicted1 that courts would swiftly declare McCain-Feingold unconstitutional. They were wrong.

The Court's response to BCRA is extremely complex, 298 pages long, with three separate "majority" opinions addressing various details of the campaign finance reform law. With only minor exceptions 2 , however, the majority upheld the law against First Amendment challenges. Simply put, the Constitution does not require the Congress to ignore gross corruption of the political process, in order to protect free speech and a free press.

The new law addressed three developments in political campaigns:

"Soft Money" is money contributed to political parties, rather than political candidates, ostensibly to further the parties' general objectives rather than help elect individuals. "Hard money" donations to particular candidates are subject to disclosure requirements and source and amount limitations. The degree to which "soft money" has been allowed to influence elections has graudually obscured the distinction. By 1995 the Federal Election Commission concluded that the parties could also use soft money to defray the costs of "legislative advocacy media advertisements," even if the ads mentioned the name of a federal candidate, so long as they did not expressly advocate the candidate's election or defeat. The key word here became "expressly", as the airwaves around election time became swamped with political ads presenting ever-more brazen methods of implicitly advocating a result, but never quite coming out and saying it.

Since Republicans tend to raise more small "hard money" donations from individuals than Democrats, who rely on big donations from unions and interest groups and a few key super-wealthy liberals, one would think that conservative pundits would cheer this latest decision. Apparently, however, conservatives view the loss of corporate "soft money" an ideological horror and travesty, regardless of the real, practical effects of the new campaign law.

Conservative commentators clearly spend too much time in a dream world where Justice Scalia is an influential jurist, rather than the court jester. Not that humor doesn't have its place in constitutional law. Ironic questions often serve well to illustrate the issues in appellate oral argument. Justice Scalia often brings this probing, questioning, but not entirely serious attitude forward from oral argument into dissenting opinions, which are not to be taken seriously as setting forth the law. Consider this widely-quoted snippet of Scalia from his dissent in the instant case:

If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so.
What Justice Scalia is saying, of course, is that buying "special access" to politicians is not a serious problem, or at least not serious enough to justify Congress' intrusion upon free speech. He thus asserts the Court's prerogative (over Congress) to decide what is serious, and what is not. He makes it sound as if, however, he is advocating some sort of doctrine of originalism, and that is precisely the spin that conservative pundits and big money interests (like the National Rifle Association, for example) are already putting on it. They fail to note that comments like this are self-refuting rhetorical devices, comparable to "if God meant man to fly, he'd have given us wings".

As an aside, the conservatives crudely conceived "original intent" approach to the Constitution can be refuted with one word: "slavery". I'm not even talking about the Civil War and post-Civil War amendments, but rather certain express provisions of the original Constitution which postponed resolution of the issue of slavery until "the Year one thousand eight hundred and eight". U.S.Const. Art. I, Section 9, cl.1 and 4; see also Art. V. In short, the document was obviously a political compromise which the drafters anticipated would be changed in the future. That goes double for the Bill of Rights, which after all were amendments.

The issue is not whether the Constitution can or should be changed. Of course it can be, and often should be. Rather, the issue is, who should change it: the Court or Congress? These campaign finance reform changes were instituted by Congress and reflect our collective experience with the regulation of campaign finance and with the Court's decision in Buckley v. Valeo. Aside from some unabashed rhetoric and a slippery slope argument (that the Court has embarked upon a path which leads inevitably to Congress asserting a new-found power to regulate the free press to prevent "corruption"), the dissenters present no good argument for gainsaying Congress in this instance.


2 The Court struck down a provision which prohibited minors from making political contributions. A majority was not persuaded that children's contributions were being abused to give anyone undue influence.

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