Panel Briefs Media on Campaign Finance Reform

The constitutionality of the Bipartisan Campaign Reform Act of 2002 was discussed by a distinguished panel in a special press briefing at the Law Center on September 4. Hosted by the Supreme Court Institute, the panel of four experts addressed both the political and legal dimensions of the Supreme Court challenge to the legislation (popularly known as the McCain-Feingold law, after its sponsors), which was scheduled for a special hearing before the Court on September 8. By December 10, the Supreme Court had rendered its decision to uphold the law’s ban on unlimited “soft money” donations and its restrictions on outside political ads. The ruling ensures that these and other related regulations will figure prominently in the 2004 election.
     Panelists were Law Center Professor Roy Schotland; the Hon. Ellen Weintraub, chair of the Federal Election Commission; John Podesta (L’76), visiting professor and former chief of staff to President Clinton; and Larry Noble, executive director of the Center for Responsive Politics and former general counsel of the Federal Exchange Commission. The moderator was Law Center Professor Richard Lazarus, director of the Supreme Court Institute.
     Professor Schotland’s opening remarks focused on the importance of the Court’s decision–not only for the 2004 election but also for certain aspects of American democracy. The impact on corporate and union contributions, he argued, constituted only the most obvious of the issues at hand. Less glaring, but still vital, were questions such as whether particular nonprofits would be excluded from regulation. Other such issues included controls on coordinated versus independent spending, criminal sanctions, and larger concerns about federalism. He expressed a concern, echoed by other panelists, that large corporations could find ways around soft money restrictions–a process he termed “institutional ventriloquism.”
      Weintraub addressed questions of public confidence in government and of waning involvement in the political process. She characterized voter turnout in recent U.S. elections as “shockingly low.” Americans, she said, perceive that “much greater access is afforded to people who make large political contributions.” Rightly or wrongly, such perceptions, she suggested, are reinforced by the appearance of cronyism in the golf games, receptions, and private parties used to woo potential donors. Cautioning that campaign finance pressures are intrinsic to the American system of government, Weintraub observed, “We’ve been at it for over 200 years, and we’re still trying to work the kinks out.” She said that it’s unclear which has the greater effect on the other, campaign donations or legislation.

     Electioneering communications also provoked strong commentary. Advertisers have been pushing the limits in recent elections, Weintraub said, by conveying clear endorsements for candidates behind the guise of less stringently regulated “issue ads.” Noble concurred, arguing that the “magic words” test introduced in Buckley v. Vallejo in 1976 (“vote for,” “elect,” “defeat”) no longer works as effectively as it once did and thus this area might also warrant improved regulation. He echoed a recurring theme among panelists in asking whether, even under the new legislation, some campaign finance would merely be rerouted to less traceable sources. There may be no absolute solution to this challenge, he concluded, adding, “What regulation in this country doesn’t require constant revisiting?”
     Podesta, concurring that the search for new loopholes never ceases, observed that many elected officials are not always as attuned to the judicial review of pertinent legislation as may appear. “I don’t think people in politics are waiting around desperately to see what the Supreme Court is going to do,” he said. “The [presidential] campaign is on, people are moving, and they are doing so under the McCain-Feingold law, which has already had a profound effect.”