- The Washington Times - Sunday, December 21, 2003

The Supreme Court decision this month upholding campaign-finance reform was hailed a victory by the law’s sponsors, but it may come back to haunt them as they return to court to fight for broad regulations to crack down on political party spending.

Led by Rep. Christopher Shays, Connecticut Republican, campaign-finance reformers sued last year to change the Federal Election Commission rules that administer the law, arguing that the intent of the law was being ignored by the commission. That lawsuit was put on hold while the Supreme Court considered the underlying law.

But Michael Toner, one of the six FEC commissioners, said the Supreme Court’s Dec. 10 ruling upholding most of the 2002 Bipartisan Campaign Reform Act (BCRA) also seemed to embrace much of the work of the commission, and may head off elements of Mr. Shays’ challenge.

“There are some concrete examples not only of the Supreme Court recognizing the regulations the agency promulgated, but also citing them approvingly,” Mr. Toner said.

The BCRA requires parties to forgo some forms of campaign contributions, restricts how interest groups may run TV and radio ads, and tries to limit federal elected officials’ involvement in fund-raising for political parties. The FEC last year finalized regulations to implement the law, but Mr. Shays argued the rules fall short in many areas.

In one instance, the FEC said an officeholder is prevented from explicitly asking for contributions, while Mr. Shays wants the regulations to try to address implied requests.

Mr. Toner, though, said the court’s majority opinion in the BCRA case favorably cited the regulations on solicitation. He said the court also seemed favorable to the regulations about who is an actual “agent” acting on behalf of an officeholder, and on one definition of when federal election activity actually begins.

Mr. Toner, a Republican nominee to the six-member commission, said he welcomes a review of the regulations, and while the court’s opinion in the first case isn’t definitive on the FEC’s interpretations, he said it is “extremely helpful in establishing the agency’s regulations are sound.”

But Don Simon, one of the attorneys for Mr. Shays in the case, said the court actually seemed to fault the FEC’s rules over the years for campaign-finance problems in the first place, including the existence of “soft money,” the uncapped donations to political parties that the new law banned.

“I think to some extent the opinion stands as a rebuke to the FEC for using regulations to undermine the statute,” Mr. Simon said. “I think to the extent the Supreme Court cited the regulations, it did not do so in a way that insulates the regulations from the challenges we’re making.”

The court’s ruling may also force the FEC to rewrite its rules and require interest groups to report when they sign a contract to buy TV or radio ads, Mr. Toner said.

Right now, the rules only require reporting once the expenditure is made, which could come weeks or months after the contract is signed.

But the Supreme Court, in its ruling earlier this month, said prior disclosure is permissible.

“It may very well be, in taking a careful look at this ruling, that advance disclosure is required,” Mr. Toner said. “We may be looking at a brave new world of prior disclosure to the federal government of political messages.”


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