Foreword: The Bipartisan Campaign Reform Act and the Constitution

Abstract

341 THE BATTLE over what has now become the Bipartisan Campaign Reform Act has raged for years. Proponents insisted it was a necessary effort to restore integrity to our federal election laws. Opponents condemned it as an unconstitutional infringement on the public’s right to discuss important issues of public policy. The new law has two main parts. The first part bans soft money to the political parties, so that unions and corporations can no longer contribute to political parties and wealthy individuals can no longer make six-figure contributions. The second part attacks the problem of sham issue advocacy, ads that waddle, quack, and smell like campaign ads, but that avoid campaign finance rules by the artifice of eschewing any of the so-called “magic words” of “express advocacy”—such as “vote for” or “elect.” The new law redefines the line distinguishing electioneering (which is subject to regulation), from genuine issue speech (which is not). Under the new 60-day bright-line standard, ads that mention a candidate and air immediately before an election are defined as campaign ads, subject to federal campaign finance laws. Swirling around the debate over these provisions were numerous empirical questions: How is soft money spent—on campaign ads or on party building? What candidates benefit most from the advertising bought with soft money? How do voters perceive sham issue ads—as education on issues or as electioneering? Who actually sponsors most of the sham issue ads—major institutional players or grassroots groups? How much genuine issue speech would the BCRA test cut out? The Brennan Center sought to answer these questions and many others in its study, Buying Time 2000: Television Advertising in the 2000 Federal Elections (2001), authored by Craig Holman and Luke McLoughlin, and funded by The Pew Charitable Trusts. We were gratified that so many of our findings made it into the Congressional Record. But throughout the debate, we were aware that the legislative battle was just the beginning. Ultimately, we knew, the Supreme Court would decide the fate of BCRA—and the result could depend on the answers to many of those same empirical questions. With that in mind, on November 9, 2001, we invited several legal scholars to participate in a panel discussion at the annual meeting of the Northeast Political Science Association. The topic was the constitutional framework for regulating issue advocacy and soft money, and the authors were encouraged to use our empirical data in their analysis. We are pleased to publish in The Election Law Journal the papers that emerged from that discussion.