Sens. John McCain R-Ariz., and Russell Feingold, D-Wis.
Written for the CQ Researcher, November 2002

The Bipartisan Campaign Reform Act (BCRA) will have a dramatic impact on a campaign finance system awash in unregulated “soft money,” but the new law is hardly revolutionary. BCRA seeks to restore constitutionally tested restrictions on campaign contributions by corporations, labor unions and wealthy individuals.

BCRA does two things: It limits the solicitation and use of soft money for federal election activity, and it calls the bluff on a narrow class of “sham issue ads” — broadcast advertisements that affect federal candidates, but which, by purporting to be about issues, brazenly skirt existing laws.

Federal law has banned the use of union and corporate treasury funds in connection with federal elections for most of the last century and capped contributions by individuals to candidates and parties since 1974. During the 2002 election cycle, however, the national parties are estimated to have spent more than $500 million in soft money. Much of this money was solicited by or on behalf of federal candidates, with checks for hundreds of thousands or millions of dollars coming from corporations, labor unions and wealthy individuals.

The Supreme Court has consistently recognized Congress' authority to regulate campaign finance and found such regulation consistent with the First Amendment. As the court stated recently in the Shrink Missouri case: “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” The court has upheld laws restricting campaign contributions on two grounds: that unregulated contributions pose a serious threat to our democracy by creating the actuality or appearance of corruption, and that Congress can act to prevent circumvention of valid contribution limits.

Both of these grounds set a firm constitutional foundation for BCRA. Corruption, or the appearance of corruption, created by the massive unregulated soft money system has already led to the public cynicism the court warned about. Recent polls show a majority of the public believes that members of Congress vote based on what big-money contributors want, despite their constituents' interests and their own beliefs.

BCRA stops circumvention of existing law and closes loopholes through which hundreds of millions of dollars have flowed. It addresses the perception of impropriety that casts a shadow over everything the Congress does, and it does so in a way consistent with our cherished constitutional rights.

Sen. Mitch McConnell, R-Ky.
Written for the CQ Researcher, November 2002

I am proud to lead a group of approximately 80 co-plaintiffs in the case that will determine nothing less than the future of political speech in our nation. The BCRA, which took effect on Nov. 6, constitutes the most threatening frontal assault on core First Amendment values in a generation. The law suppresses speech about political issues, fundamentally undermines the role of national and state political parties in our electoral system and squarely attacks the Supreme Court's decision in Buckley v. Valeo.

The eclectic collection of plaintiffs challenging this law — unions and corporations, Democratic and Republican political parties, starkly divergent public interest groups, individual officeholders and citizens — share little except a concern that their voices will not be heard in the democratic process if BCRA is upheld.

The BCRA exhibits a total absence of proportionality and utter contempt for governing Supreme Court precedent. The “soft money” ban goes so far afield from core notions of federalism and the First Amendment as to bar the California Democratic Party from using funds lawfully raised under California law to pay for a radio advertisement urging California voters to reject a California initiative relating to affirmative action.

The issue-advocacy blackout provisions deviate so far from First Amendment principles as to criminalize advertisements by the National Right to Life Committee denouncing partial-birth abortion and encouraging viewers to call their senators to urge them to vote to ban that procedure.

The Constitution grants Congress some power to act in some circumstances, but we are never free simply to ignore competing constitutional interests, to disparage governing Supreme Court case law, and to disregard well-established and deeply rooted constitutional limitations. Nor is Congress free, in an effort to avoid criticism of itself and its members, to enact a statute plainly designed to protect incumbents who concluded we had “lost control of our campaigns.”

Never before has the First Amendment been treated as some sort of impediment to progress, with speech about issues and candidates viewed as a threat to public health requiring quarantine lest too much of it be permitted. Never before has Congress wielded such a legislative sledgehammer when essential speech and federalism issues are at stake. No such law, dating from the Alien and Sedition Acts, has ever been deemed constitutional. It is my deepest hope that, for the sake of our Constitution and our democracy, this law will meet a similar fate.