What is the Bipartisan Campaign Finance Act of 2002?

The law was passed by the House of Representatives on Feb. 14, 2002, and by the Senate on March 20, then signed into law by President Bush on March 27. In its final stages before passage, it was also known as the McCain-Feingold bill, named after main sponsors Sen. John McCain, R-Ariz., and Russ Feingold, D-Wis. Other key sponsors were Sens. Olympia Snowe, R-Maine, and James Jeffords, I-Vermont. In the House, Reps. Christopher Shays, R-Conn., and Martin Meehan, D-Mass., sponsored the legislation. The main provisions of the law, which took effect on Nov. 6, 2002, are (1) a ban on “soft money” donations to political parties by individuals, corporations and unions; (2) restrictions on “electioneering communications” — broadcast advertisements close to an election that mention specific candidates by name; and (3) an increase in the limits on donations individuals may make to candidates for federal office.

  What is soft money and why is it being regulated?

The Federal Election Commission in 1979 issued a regulation allowing political parties to raise funds for “party-building” efforts — such as voter registration drives and TV advertising. This “soft money” remains outside the normal rules that require reporting the source and amount of donations. It was originally justified as a way for parties to remain viable as entities separate from their candidates. But over the years, soft-money donations from corporations and unions — otherwise barred from making donations — to political parties have skyrocketed. And the national parties have transferred much of the money to state party accounts that are used to influence specific elections. The growth of soft money was seen by reformers as thwarting the purpose of all campaign-finance regulations.

  What are electioneering communications?

These are defined by the new law as “any broadcast, cable or satellite communication which refers to a clearly identified candidate for federal office” within 60 days before a general election or 30 days before a primary. The law prohibits corporations and unions from using money from their treasuries to pay for these ads, though their political-action committees could pay for them using procedures that call for disclosing the source of the money. Electioneering ads in newspapers and magazines are still permitted and are not affected by the new law.

  What are the First Amendment concerns raised by the new campaign-finance law?

Because of the U.S. Supreme Court’s 1976 ruling in Buckley v. Valeo, all regulations affecting the money used in campaigns must be evaluated with the First Amendment in mind. This is because money used in campaigns, especially the money spent by candidates, directly or indirectly supports the expression of political views. As the Supreme Court said in Buckley, “Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression.” Critics of the new law say it violates the First Amendment by sharply restricting the ability of political parties and other groups to convey their views about issues and candidates in elections.

  How do campaign-finance law supporters respond to the First Amendment issues raised?

Those who like the new law say it merely restores the political landscape to the way it was a decade ago, before the use of soft money and electioneering ads became so widespread. In a recent position paper, Brookings Institution scholars Thomas Mann and Norman Ornstein also insist that “no speech is banned by the new law — not a single ad nor any word or combination of words would be muzzled.” Only the source of the funds and the disclosure of the source are affected by the law, they say. In addition, supporters argue that the importance of curbing corruption in the political system outweighs any infringement on expression the law might impose.

  How have the courts assessed the BCRA?

The law itself spelled out an expedited process for handling the inevitable legal challenges to the law. A three-judge panel in the District of Columbia held hearings at which evidence of the impact of campaign contributions was introduced. After months of deliberation, the panel issued its ruling in May 2003. The panel, comprised of appeals court Judge Karen Henderson and district Judges Colleen Kollar-Kotelly and Richard Leon, produced more than 1,600 pages of mix-and-match opinions that upheld some provisions of the law but struck down others. Commentators generally agreed that because of its fractured findings and conclusions, the ruling did little to help the Supreme Court as it undertook its own assessment of the law.

  How did the Supreme Court handle the case?

Because the panel did not rule until May, the Supreme Court did not take up the issue until after its summer recess. Twelve separate appeals concerning the BCRA reached the Court, but they were consolidated and became known generally under the name McConnell v. Federal Election Commission. The justices, who traditionally do not begin their term until the first Monday in October, convened in early September to consider the case in a rare four-hour session. Some of the top First Amendment and constitutional lawyers in the nation argued in the cases — including Floyd Abrams, Kenneth Starr, Seth Waxman and the current solicitor general Theodore Olson. Following the arguments, the general view was that the justices would try to issue their ruling before the end of 2003, so that the uncertainty over the law would end before the 2004 presidential campaign got underway.

  How did the Supreme Court rule on the BCRA?

The justices, like the court panel that first assessed the law, was sharply divided. But the five-justice majority did speak clearly and decisively in support of almost the entire law. Justices John Paul Stevens and Sandra Day O'Connor wrote the main opinion, and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer were also in the majority. Citing extensive evidence of the influence of campaign money on legislation and elections, the majority gave deference to Congress in fashioning laws that would prevent companies, individuals and parties from circumventing earlier campaign laws. The majority gave less weight than it usually does to First Amendment concerns, prompting dissenting Justice Antonin Scalia to call it a "sad day" for freedom of speech. Also dissenting in most parts of the decision were Chief Justice William Rehnquist, and Justices Anthony Kennedy and Clarence Thomas. The only major provision of the law struck down was the ban on campaign donations by minors. The Court unanimously agreed that this section of the law unconstitutionally infringed on the speech rights of minors.

  Why is judicial campaign speech treated differently from other types of campaign speech?

Judges have a special role in society: to interpret and uphold the law impartially. They are supposed to decide cases on the bases of the law and the facts of the case, not popular opinion. The impartiality of a judge or judicial candidate, it is feared, would be in question if they started making campaign promises and stating their support for or opposition to certain views. If judges or judicial candidates were to make advance commitments, the argument goes, they would be under pressure to honor those commitments if elected. This pressure could prevent a litigant from receiving a fair trial and hamper the judge’s ability to make an impartial decision. Additionally, any statement that could be taken as an advance commitment could undermine the credibility of his or her decision and, ultimately, the judicial system. To avoid this dilemma, states have put into place restrictions on what judges and judicial candidates can say during their campaigns.

  I work with a political committee. Am I required to put a disclaimer on e-mails or on our Web site?

Yes. Political committees that are registered with the Federal Election Commission are required to place disclaimers on their public Web sites. If you send out more than 500 substantially similar e-mails, each message must contain a disclaimer. (For specific disclaimer requirements, please see this FEC information.)

  May I send an e-mail to a friend about a political topic or federal election without worrying about a disclaimer?

Yes. Individuals are not subject to the rules and regulations concerning online campaign advertising. An individual may send unlimited personal e-mails on any political topic. There is no need even to identify yourself and it is not necessary to state whether or not you have been authorized by a political party in sending the e-mail.

  May I create my own personal political blog? May I post to another’s political blog?

Absolutely to both. Uncompensated blogging is exempted from any Federal Election Commission regulation in effect today.

  What if I pay to place a political ad on someone else’s Web page? Would I be subject to any rules and regulations?

Yes. An ad placed on someone else’s Web page for a fee would be considered to be a “public communication” under the regulations. To take this question one step further, paying to place an ad on another’s Web site may result in a contribution or expenditure. All disclaimer requirements would also apply in this situation.

  The company I work for provides commercial services online. May we provide our services to political committees and candidates?

Yes. You may provide your services to political candidates and committees as long as you charge the normal and usual fees for your services.