By Chad Hobbs
There is no arguing that American elections have become big business. Billions of dollars are raised by both parties and their candidates, funding everything from presidential campaigns down to state and local races. As alluded to in last week’s introduction, what happened that so drastically changed an $8,836 race in 2000 for our 27th District State Representative seat into a $327,684 race in 2018?
To understand much of what is currently going on in regards to campaign finance laws, we must go back to early 2002.
What was when a seven-year effort by the Republican Senator from Arizona, John McCain, and the Democrat senator from Wisconsin, Russ Feingold, finally paid off, and the Bipartisan Campaign Reform Act of 2002 (BCRA) was passed into law.
Stiff opposition by special interest groups, along with politics of the day and a Supreme Court ruling in 1976 (Buckley v. Valeo) kept this from being a perfect solution, but when considering that no significant campaign finance law had been passed since 1974, many saw it as a big win, even if not a complete victory, towards reforming and reigning in a system run amuck.
The BRCA’s key provisions were a) a ban on unrestricted (“soft money”) donations made directly to political parties (often by corporations, unions, or wealthy individuals) and on the solicitation of those donations by elected officials; b) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and c) restrictions on political parties’ use of their funds for advertising on behalf of candidates (in the form of “issue ads” or “coordinated expenditures”), according to Oyez.org, an online database of Supreme Court arguments and rulings.
It did not take long for this law to be challenged. One of the most well-known oppositions was the 2003 Supreme Court case, McConnell v. Federal Elections Commission. Senator Mitch McConnell (R-KY) was not, however, the only challenger of the constitutionality of the BCRA. Several special interests and opponents of reform also challenged the act, including the California Democratic Party.
The Court held that the restriction on free speech was minimal. It then found that the restriction was justified by the government’s legitimate interest in preventing “both the actual corruption threatened by large financial contributions and…the appearance of corruption” that might result from those contributions. The Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O’Connor and Stevens wrote that “money, like water, will always find and outlet” and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits. The Court found that the law only affected state elections in which federal candidates were involved and also that it did not prevent states from creating separate election laws for state and local elections. (“McConnell v. Federal Election Comission.” Oyez, www.oyez.org).
As a result of these rulings, the act stayed in tact for the most part, but the Court’s interpretation in 2003 opened the door for money to continue into state level races and reiterated that the BRCA pertained to federal candidates and elections. In 2010, however, the campaign finance regulation damn built by the BRCA burst with the Supreme Court’s ruling in Citizens United v. Federal Election Commission which reversed course and allowed for what we see today. Next week, this series will dive into Citizens United v. FEC, and the rise of super PAC’s.