Mcconnell v. F.E.C.


Court: U.S.

Date published: Dec 10, 2003


The Bipartisan Campaign Reform Act of 2002 (BCRA), which amended the Federal Election Campaign Act of 1971 (FECA), the Communications Act of 1934, and other portions of the United States Code, is the most recent of nearly a century of federal enactments designed “to purge national politics of what [is] conceived to be the pernicious influence of ‘big money’ campaign contributions.” United States v. Automobile Workers352 U. S. 567, 572. In enacting BCRA, Congress sought to address three important developments in the years since this Court’s landmark decision in Buckley v. Valeo424 U. S. 1 ( per curiam): the increased importance of “soft money,” the proliferation of “issue ads,” and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections.

About the first development, before BCRA, FECA’s disclosure requirements and source and amount limitations extended only to so-called “hard money” contributions made to influence an election for federal office. Political parties and candidates were able to circumvent FECA’s limitations by contributing “soft money” — money as yet unregulated under FECA — to be used for activities intended to influence state or local elections; for mixed-purpose activities such as get-out-the-vote (GOTV) drives and generic party advertising; and legislative advocacy advertisements, even if they mentioned a federal candidate’s name, so long as the ads did not expressly advocate the candidate’s election or defeat. Concerning the second development, parties and candidates circumvented FECA by using “issue ads” that were specifically intended to affect election results, but did not contain “magic words,” such as “Vote Against Jane Doe,” which would have subjected the ads to FECA’s restrictions. Those developments were detailed in a 1998 Senate Committee Report summarizing an investigation into the 1996 federal elections, which concluded that the soft-money loophole had led to a meltdown of the campaign finance system; and discussed potential reforms, including a soft-money ban and restrictions on sham issue advocacy by nonparty groups.

Congress enacted many of the committee’s proposals in BCRA: Title I regulates the use of soft money by political parties, officeholders, and candidates; Title II primarily prohibits corporations and unions from using general treasury funds for communications that are intended to, or have the effect of, influencing federal election outcomes; and Titles III, IV, and V set out other requirements. Eleven actions challenging BCRA’s constitutionality were filed. A three-judge District Court held some parts of BCRA unconstitutional and upheld others. The parties challenging the law are referred to here as plaintiffs, and those who intervened in support of the law are intervenor-defendants.



THE CHIEF JUSTICE, writing for the Court, concludes that the McConnell plaintiffs lack standing to challenge § 305 of the Bipartisan Campaign Reform Act of 2002 (BCRA) because Senator McConnell cannot be affected by the provision until “45 days before the Republican primary election in 2008.” Ante, at 226. I am not persuaded that Article Ill’s case-or-controversy requirement imposes such a strict temporal limit on our jurisdiction. By asserting that he has run attack ads in the past, that he plans to run such ads in his next campaign, and that § 305 will adversely affect his campaign strategy, Senator McConnell has identified a “concrete,” “‘distinct,'” and “actual” injury, Whitmore v. Arkansas495 U. S. 149, 155 (1990). That the injury is distant in time does not make it illusory.

The second prong of the standing inquiry — whether the alleged injury is fairly traceable to the defendant’s challenged action and not the result of a third party’s independent choices— poses a closer question. Section 305 does not require broadcast stations to charge a candidate higher rates for unsigned ads that mention the candidate’s opponent. Rather, the provision simply permits stations to charge their normal rates for such ads. Some stations may take advantage of this regulatory gap and adopt pricing schemes that discriminate between the kind of ads that Senator McConnell has run in the past and those that strictly comply with § 305. It is also possible, however, that instead of incurring the transaction costs of policing candidates’ compliance with § 305, stations will continue to charge the same rates for attack ads as for all other campaign ads. In the absence of any record evidence that stations will uniformly choose to charge Senator McConnell higher rates for the attack ads he proposes to run in 2008, it is at least arguable that his alleged injury is not traceable to BCRA § 305.

Nevertheless, I would entertain the plaintiffs’ challenge to § 305 on the merits and uphold the section. Like BCRA §§ 201, 212, and 311, § 305 serves an important — and constitutionally sufficient — informational purpose. Moreover, § 305’s disclosure requirements largely overlap those of § 311, and plaintiffs identify no reason why any candidate already in compliance with § 311 will be harmed by the marginal additional burden of complying with § 305. Indeed, I am convinced that “the important governmental interest of ‘shed[ding] the light of publicity’ on campaign financing,” invoked above in connection with § 311, ante, at 231 (opinion of REHNQUIST, C. J.), would suffice to support a legislative provision expressly requiring all sponsors of attack ads to identify themselves in their ads. That § 305 seeks to achieve the same purpose indirectly, by withdrawing a statutory benefit, does not render the provision any less sound.

Finally, I do not regard § 305 as a constitutionally suspect “viewpoint-based regulation.” Brief for Appellant/Cross-Appellee Sen. Mitch McConnell et al. in No. 02-1674 et al., p. 67. Like BCRA’s other disclosure requirements, § 305 evenhandedly regulates speech based on its electioneering content. Although the section reaches only ads that mention opposing candidates, it applies equally to all such ads. Disagreement with one’s opponent expresses a  “viewpoint,” but § 305 treats that expression exactly like the opponent’s response.

In sum, I would uphold § 305.

Related Post

Leave a Reply

Your email address will not be published. Required fields are marked *

3 + two =