Reformers, Cheer While You Can

For years, reformers have lamented that the U.S. Supreme Court’s 1976 decision in Buckley vs. Valeo prevented the implementation of effective campaign finance laws. Everything changed Wednesday, when the court decided McConnell vs. FEC, a case that probably will be viewed as the most important campaign finance case since Buckley. In McConnell, a 5-4 court majority upheld virtually all of the 2002 McCain-Feingold law’s loophole-closing provisions.

Although McConnell did not expressly overrule Buckley, it brushed aside Buckley’s single-minded 1st Amendment concern that campaign spending should remain unlimited to allow for “uninhibited, robust” political debate. The court’s attitude now is one of significant deference to Congress over the appropriate role of money in politics.

With this newly minted court deference, which was foreshadowed in the court’s three most recent campaign finance cases, reformers have good reason to celebrate. But the celebrations will not last for long.

Even before Wednesday’s ruling, reformers were calling on Congress to close new loopholes, including some in McCain-Feingold itself, and to ensure that the Federal Election Commission interpreted the law consistent with congressional purposes, something that has been a problem in the past.

Reformers should be aware especially of three potential dangers. First, just because a law like McCain-Feingold is constitutional does not mean that it is desirable. We have already seen a somewhat anticipated consequence of the soft-money ban. Big money has been flowing in recent months to groups outside of the political parties to pay for election advertisements. George Soros and other wealthy individuals have begun funding such groups with Democratic-leaning tendencies, and we can expect other individuals to follow suit by funding Republican-leaning organizations. Under the McCain-Feingold law as written, such groups are likely to be subject to disclosure rules but no limits on funding. These “shadow parties” could weaken real political parties and potentially undermine candidate messages. After the 2004 election cycle, reformers should consider whether Congress did more harm than good in the desire to break the sale of access to candidates by parties.

Second, the people must be vigilant to ensure that incumbents in Congress and state legislatures do not pass self-interested campaign finance laws in the name of “reform.” More court deference means that the people will be the main check on laws purportedly aimed at preventing corruption or promoting fair elections but really aimed at incumbency protection.

Indeed, the majority in the McConnell ruling rejected plausible arguments that aspects of the McCain-Feingold law should be struck down as incumbency protection measures.

Third, the McConnell decision is the product of a fragile court majority. Chief Justice William Rehnquist, who had voted to uphold limits on corporate campaign expenditures in a 1990 case, switched his vote to opposition here. In response, perennial “swing voter” Justice Sandra Day O’Connor switched her vote in the opposite direction -- her third apparent shift on the issue since she has been on the court.

This 5-4 decision upholding major aspects of the law easily could have gone the other way had O’Connor not changed her mind, or had she retired in June at the end of the court’s term. President Bush has promised to replace retiring justices with jurists along the lines of a Antonin Scalia or Clarence Thomas. In McConnell, Scalia and Thomas voted to scrap virtually all campaign finance laws. Indeed, Thomas would have struck down McCain-Feingold’s basic disclosure provisions.

McConnell vs. FEC is no doubt a victory for reform; how long it lasts may depend upon who gets to appoint the next Supreme Court justice.