Act I: BCRA Wins in Congress. Act II: BCRA Wins Big at the Court. Act III: BCRA Loses to Reality

Abstract

335 THE CAMPAIGN FINANCE reformers’ triumph is explained best in words attributed to Thomas Carlyle: “Permanence, perseverance and persistence in spite of all obstacles, discouragements, and impossibilities. . . .” The triumph is threefold: First, winning enactment of the Bipartisan Campaign Reform Act (BCRA). Second, winning a “surprising[ly] . . . unequivocal victory” at the Court.1 Third, winning both the public and the Court through effective advocacy. The victories in Congress and Court were the well-deserved fruit of the reformers’ having won a years-long public dialogue with a constant, clear portrayal of money in politics as evil—an evil that, they persuasively claimed, could be reduced by steps they proposed. Justice O’Connor captured the matter so well in her 2003 book: “[R]are indeed is the legal victory—in court or legislature—that is not a careful byproduct of an emerging social consensus.”2 The reformers’ diagnosis of the problems— a “dark view of politics”—is never hard to sell.3 And perhaps it was easy to persuade editorial boards and activists that the reformers’ prescription—trying to “dam” or “bottle up” the flows of campaign funds—would be effective. But experience has shown that “bottling up” doesn’t work.4 True, in 1976 the newness of 1974’s major amendments to FECA, combined