- The Washington Times - Thursday, December 11, 2003

The U.S. Supreme Court yesterday upheld the new campaign-finance law, which banned “soft money” donations to national political parties and prohibited interest groups from running issue ads immediately before a federal election.

The 5-4 ruling on those two key issues validates the law that President Bush signed in March 2002, which has led to major changes in the way parties and interest groups participate in elections. The law will now govern the 2004 presidential and congressional elections.

Justice Sandra Day O’Connor and Justice John Paul Stevens, in their majority opinion, said allowing wealthy corporations, unions and individual donors to make unlimited donations to political parties, known as “soft money,” is “likely to buy donors preferential access to federal officeholders.” They were joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and David H. Souter.

Dissenting were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, who said by allowing Congress to severely restrict ads naming a candidate in the days before a primary or election, the ruling violates the most basic principle of the First Amendment.

“Who could have imagined that the same court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government,” Justice Scalia wrote in his dissent.

But the majority wrote that there is no real difference between issue ads — which critics call “sham ads” because, while not specifically endorsing or opposing a candidate, do everything short of that — and “electioneering” ads, which do specifically call for someone’s election or defeat.

The law took effect after the November 2002 elections. It banned parties from raising soft money, and also prohibits parties and interest groups from running “issue ads” naming a federal candidate for 30 days before a primary or 60 days before a general election.

The law also restricts the way states can raise and spend soft money in federal elections, but does not change state laws regarding state elections.

Soft money had become an important source of funding for political parties. In 1984, the parties collected $21.6 million, accounting for 5 percent of party fund raising. By 2000, that had grown to $498 million, accounting for 42 percent.

The Democrat and Republican parties raised about equal amounts of soft money recently, while Republicans raise much more “hard money” — the regulated donations on which parties have traditionally relied. Both parties are on pace for record years for hard dollar fund-raising, but will fall short of their combined hard and soft money fund-raising in recent years.

Under the new restrictions, parties have slashed their Washington staffs and changed the way they raise and spend money. Meanwhile, citizen interest groups have had to re-evaluate how they will lobby Congress and the president under rules that prevent them from running TV ads aimed at lawmakers immediately before an election.

In a joint statement, the four lead congressional sponsors of the law called the ruling a “landmark victory.”

“Now that the court has spoken, we must make sure that the law is properly interpreted and enforced,” said Sen. John McCain of Arizona and Rep. Christopher Shays of Connecticut, both Republicans, and Sen. Russell D. Feingold of Wisconsin and Rep. Martin T. Meehan of Massachusetts, both Democrats.

White House spokesman Scott McClellan said the ruling “will help bring some clarity to the process.”

But Wayne LaPierre, executive director of the National Rifle Association, who filed the first challenge to the law, said, “You’re going to have to put an asterisk by the First Amendment, and a footnote, because for many months of the year it’s no longer in effect.”

He said, though, that the NRA would still find ways to make its point in federal elections.

“They didn’t say we couldn’t mention the U.S. Congress, or the Senate. And we will run advertising directing the American public to information sources as to where they can find the truth, and the facts, and who’s for them and who’s against them,” he said.

Mr. LaPierre also said his group will explore avenues like the Internet and direct mail, and he said they will explore ways to compete on television.

In their opinion, the majority justices themselves acknowledged that “money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day.”

A special three-judge panel ruled May 2 it was permissible to ban soft money to national parties, but the court set up a different formula for deciding whether issue ads were acceptable or not.

Yesterday’s court decision was much more blunt, with a majority upholding the law nearly in its entirety, though the nearly 300-page decision was a web of concurrences and dissents.

The two provisions the court did find unconstitutional were a ban on minors’ contributions and a provision relating to what sort of coordination political parties may have with a candidate.

Jan Baran, one of the attorneys for those trying to stop the law, said the 5-4 split on the key issues “reflects how evenly opinion is divided on these subjects.”

“What remains to be seen is how this new law will be used in the political process,” he said. “We know for sure the national parties will have less money. We don’t know whether nonparty groups will have more money or how they will spend that money.”

Already, some wealthy Democratic donors have promised to funnel soft money to “527 groups,” named for the section of tax law that governs them, which will then spend the money on turning out Democratic base voters.

“Soft money is not gone — it has just changed its address,” said Sen. Mitch McConnell, Kentucky Republican and the lead plaintiff in trying to overturn the law.

Republican activists have said they will follow suit and start their own 527 organizations.

But Steve Weissman, associate director for policy at the Campaign Finance Institute, said it will be a few years before it’s clear what role 527s will play. He said the key question is whether corporations, who made up a large portion of soft-money donors, will find a new outlet.

“We know, visibly at least, we don’t see evidence so far of the major corporate donors sending this money,” he said.

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