First Amendment topicsAbout the First Amendment
News Story
Supreme Court backs key parts of campaign-finance law

By The Associated Press,
First Amendment Center Online staff

WASHINGTON — A sharply divided Supreme Court upheld key features of the nation’s new law intended to lessen the influence of money in politics, ruling today that the government may ban unlimited donations to political parties.

Those donations, called “soft money,” had become a mainstay of modern political campaigns, used to rally voters to the polls and to pay for sharply worded television ads.

Congress may regulate campaign money to prevent the real or perceived corruption of political candidates, a 5-4 majority of the Court ruled in McConnell v. Federal Election Commission, 02-1674. (See ruling on the Supreme Court's Web site.) That goal and most of the rules Congress drafted to meet it outweigh limitations on the free speech of candidates and others in politics, the majority said.

At the same time, the Court acknowledged the 2002 law would not stop the flow of money in politics.

“We are under no illusion that (the law) will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day,” Justices John Paul Stevens and Sandra Day O’Connor wrote for the majority.

Ken Paulson, executive director of the First Amendment Center, said he found the decision surprising.

“This decision is difficult to understand from a First Amendment perspective. The justices strive to honor principles and precedent, but in this case, most seem to be so troubled by the perceived abuse of soft money that they’re simply saying ‘enough is enough.’ Most surprising is the upholding of limits on advertising in the weeks preceding an election. That addresses soft money, but shortchanges hard rights, including the rights of free speech and association as part of the political process.”

The justices struck down only two provisions of the Bipartisan Campaign Reform Act — a ban on political contributions from those too young to vote and a limitation on some party spending that is independent of a particular candidate.

The law hasn’t stopped the flow of big money, but it has changed its course.

In the months since the law took effect, several partisan interest groups have popped up to collect corporate, union and unlimited individual donations to try to influence next year’s elections, including several on the Democratic side focused on the presidential race.

Supporters of the new law said the donations from corporations, unions and wealthy individuals capitalized on a loophole in the existing, Watergate-era campaign-money system.

The Court also upheld restrictions on political ads in the weeks before an election. The television and radio ads often feature harsh attacks by one politician against another or by groups running commercials against candidates.

The so-called soft money is a catch-all term for money that is not subject to existing federal caps on the amount individuals may give and which is outside the old law prohibiting corporations and labor unions from making direct campaign donations.

Federal election regulators had allowed soft-money donations outside those restrictions so long as the money went to pay for get-out-the-vote activities and other party building programs run by the political parties.

Soft money allowed the three national Democratic Party committees to match their GOP rivals nearly dollar-for-dollar on get-out-the-vote and issue-ad resources in the 2002 election.

The Democratic committees raised about $246 million in soft money in the last election cycle, compared with $250 million for the Republicans.

Supporters of the new law said that in practice, soft money was funneled to influence specific races for the House, Senate or the White House, and that donors, parties and candidates all knew it.

In addition to Stevens and O’Connor, Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer signed the main opinion. Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas dissented on most issues. Swing voter Kennedy struck a compromise on one portion of the law. He said he would vote to uphold a soft-money ban only as it applies to federal candidates and officeholders.

The majority’s ruling bars candidates for federal office, including incumbent members of Congress or an incumbent president, from raising soft money.

The majority also barred the national political parties from raising this kind of money, and said their affiliates in the individual states may not serve as conduits for soft money.

Without soft money, politicians and political parties may only take in donations that are already allowed in limited amounts, such as a private individual’s small re-election donation to his or her local member of Congress.

That means no more huge checks from wealthy donors, and no contributions from the treasuries of corporations or labor unions.

The Supreme Court’s 300-page ruling on the 2002 campaign-finance overhaul settles legal and constitutional challenges from both the political right and the left. Although the reform effort was passed by Congress and signed into law by President Bush, many politicians and others in the business of politics were leery of it.

The law is often known as McCain-Feingold — named for its chief Senate sponsors, Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis. McCain built his maverick 2000 presidential campaign largely around the assertion that the old system of political money laws was full of holes.

The new rules have been in force during the early stages of preparation for the 2004 elections for president and Congress. The high court ruling means those rules remain largely untouched as the political seasons heats up. The first delegate-selection contests are just weeks away, in January.

A lower court panel of federal judges had issued its own, fractured ruling on the new law earlier this year, but the Supreme Court got the last word.

The justices cut short their summer vacation to hear an extraordinary four hours of oral arguments on the issue in early September. The Court’s regular term began a month later.

The case marked the Court’s most detailed look in a generation at the complicated relationships among those who give and receive campaign cash. The case also presented a basic question about the wisdom of the government policing political give and take.

The Court has given government an extensive role in the area on grounds that there is a fundamental national interest in rooting out corruption or even the appearance of it. That concern justifies limitations on the freedom of speech, the Court has said.

(See Supreme Court page on the case.)

High court hears 2 sides of campaign finance
Congress went too far, stepped on political speech, Ken Starr argues in special session on McConnell v. FEC. 09.08.03


Partisan groups may also face fundraising limits

Incoming Federal Election Commission chairman says Supreme Court ruling seems to mean FEC can now regulate groups that spend money expressly calling for a candidate's election or defeat. 12.20.03

Court concludes 2003-04 First Amendment docket
First Amendment Center Web site offers 2003-04 docket sheet, extensive case data, analysis; experts available for interviews. 07.01.04

Anti-abortion group sues over campaign finance
Prohibited from mentioning senator's name, Wisconsin Right to Life challenges restrictions on pre-election advertising. 07.29.04

Scalia to Court: Heed First Amendment in reviewing campaign law
By Tony Mauro Some justices seem troubled by Congress' free-speech restrictions in McCain-Feingold. 09.09.03

Campaign-finance, theology cases to be watched closely
By Tony Mauro McConnell v. FEC, Locke v. Davey most important cases on Court's short 2003-04 First Amendment docket. 10.06.03

Campaign finance: Reform trumps rights
By Ronald K.L. Collins & Paul McMasters Handing Congress the power to define corruption in such open-ended and potentially self-serving ways all but defines the First Amendment out of existence. 12.11.03

First Amendment gets short shrift at high court
By Tony Mauro Justice Scalia calls campaign-finance ruling 'sad day for freedom of speech.' See info, links: McConnell v. Federal Election Commission. 12.11.03

First Amendment plays second fiddle this term
By Tony Mauro In several cases, high court's desire to duck or dither about dispute overwhelmed First Amendment objections raised. 07.13.04

Some justices seem to rethink campaign-finance ruling
Arguments in challenge to election-ad restrictions may have to be re-heard if O'Connor leaves before Court rules. 01.18.06

Rich get First Amendment favors in campaign-finance 'reform'
By Nat Hentoff Supreme Court ruling means wealthy individuals' political speech remains unfettered, while political groups' right to speak at crucial times near elections is curtailed. 01.22.04

Money Talks: Campaign Finance Laws and the First Amendment

CRS reports for Congress on First Amendment topics

Campaign finance overview

News summary page
View the latest news stories throughout the First Amendment Center Online.

print this   Print

Last system update: Friday, July 25, 2008 | 08:00:48
About this site
About the First Amendment
About the First Amendment Center
First Amendment programs
State of the First Amendment

First Reports
Supreme Court
First Amendment publications
First Amendment Center history
Freedom Sings™
First Amendment

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment

Lesson plans
Contact us
Privacy statement
Related links