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Finally. Five long months after hearing arguments, a special three-judge court has issued a fractured decision on the McCain-Feingold campaign reform law. The confusing opinion totals more than 1,600 pages, with each judge writing separately. The rough summary: U.S. District Judge Colleen Kollar-Kotelly voted to uphold various McCain-Feingold provisions, D.C. Circuit Judge Karen LeCraft Henderson voted to invalidate them, and U.S. District Judge Richard Leon adopted a middle position. Although lower courts generally handle fact-finding, the three judges’ disagreements prevented them from developing a complete factual record in this case. Now some critics are claiming that the lower court review was a waste of time, and blaming personality conflicts and ideological squabbles for the decision’s delay and lack of clarity. But I blame campaign finance doctrine itself — for it provides judges with too little guidance in making legal or factual determinations. The unwieldy doctrine has its origins in the 1976 decision in Buckley v. Valeo.In that case, the U.S. Supreme Court assumed that contributingmoney to political candidates poses a significant threat of corruption, but spendingmoney in support of candidates poses a minimal threat. So the Court upheld limits on individuals’ electoral contributions and struck down limits on individuals’ electoral spending. In part because Buckleyfailed to articulate clear legal or evidentiary standards ,the Court has since issued a number of divided campaign finance opinions, some striking down reforms and others upholding them. And now we have the lower court’s May 2 monstrosity. The McCain-Feingold decision teaches us much more about the unmanageability of the general doctrine stemming from Buckleythan it does about the constitutionality of the current statute. On appeal, the Supreme Court has a twofold task: to rule on McCain-Feingold, and to craft real guidelines for lower courts reviewing future reforms. UNCLEAR ON THE LAW Supreme Court caselaw allows campaign finance limits to prevent “corruption and the appearance of corruption,” but reforms that go too far in restricting speech are unconstitutionally “overbroad.” These abstract terms leave much unanswered. How do judges recognize corruption— or the appearanceof corruption? At what point does reform infringe on so much speech that it becomes overbroad? Consider the McCain-Feingold provision that tries to close the issue advocacy loophole. The statute prohibits corporations and unions from spending money on television or radio spots that even refer to a federal candidate and are broadcast in the candidate’s district during a campaign’s final weeks. Due to the lack of clear guidance from the Supreme Court, the three judges went three ways over whether this provision is unconstitutionally overbroad. Judge Henderson’s emphasis on completely unfettered expression and her skepticism about the corrupting influence of money led her to invalidate the provision. She would err on the side of protecting speech and would allow Congress to regulate spending only on commercials that include terms like “vote for” or “defeat.” The fact that corporations and unions could still influence elections by spending money on attack ads that avoid these triggering words would be a necessary sacrifice for free speech. Judge Kollar-Kotelly’s emphasis on preventing corruption and closing regulatory loopholes — combined with the conclusion that the “overwhelming majority” of the restricted ads pose a threat of corruption — led her to reject overbreadth claims. She upheld the provision. Judge Leon’s respect for Congress prevented him from adopting Henderson’s rule erring on the side of protecting speech. At the same time, his concern for speech prevented him from erring on the side of stopping corruption as much as Kollar-Kotelly. In particular, Leon was concerned about the small percentage of speech prohibited by the law that is notdirected at influencing federal elections — apparently as much as 17 percent based on past elections — and therefore does not corrupt the process. For example, the bar on mentioning federal candidates would prevent corporate and union spending on ads that support or attack federal legislation, such as Sarbanes-Oxley, that is named after congressional sponsors. Consequently, Leon struck down the issue advocacy provision as “substantially overbroad.” Nonetheless, Leon was still sufficiently concerned about corruption to join with Kollar-Kotelly in upholding part of a backup provision on issue advocacy (provided by McCain-Feingold drafters in case the first provision did not stand). The backup measure as construed by Judge Leon bars corporations and unions from spending money on any broadcast that “promotes or supports” or “attacks or opposes” a federal candidate. The problem with the backup, however, is vagueness. Would it prohibit Lockheed Martin from spending money to broadcast a nationwide ad that proclaims “Support Our Troops” and features a picture of George W. Bush on the day before the 2004 election? What about 90 days before the election? A year before the election? Tomorrow? UNCLEAR ON THE EVIDENCE Even if the lower court knew how to apply concepts like “substantial overbreadth” and “corruption” consistently, crucial fact-finding questions remain. A lack of evidentiary standards in campaign finance doctrine means that factual questions too often are answered by ad hoc political assumptions, which then raise issues about judicial impartiality. For example, the three judges again went three ways on the soft money provisions of McCain-Feingold. Under prior law, political parties could collect unlimited, unregulated funds from individuals, corporations, and unions. McCain-Feingold closes that loophole by banning national parties from collecting soft money and prohibiting state parties from spending soft money when a federal candidate is on the ballot. Judge Henderson found the soft money provisions unconstitutional, Judge Kollar-Kotelly found them constitutional, and Judge Leon’s compromise position effectively serves as the decision of the court. The division arose due to factual disagreements over whether soft money corrupts, which in turn stem from unclear evidentiary standards. Leon ruled that the statute properly prohibits national and state parties from spending soft money on ads that support or oppose a federal candidate. But he struck down the ban on national and state parties collecting soft money. Leon stated that it was not clear that spending soft money on voter registration, voter mobilization, and campaign worker salaries affected federal elections enough to make candidates feel indebted to soft money contributors. Therefore, spending soft money on such activities poses an insufficient threat of corruption. Kollar-Kotelly disagreed. She said that an appearance of corruption flows from the collection of soft money by parties, regardless of how the money is spent. Further, she cited evidence that spending on voter registration, mobilization, etc., benefits federal candidates and therefore carries a threat of actual corruption. Kollar-Kotelly’s disagreement with Leon stems from a lack of evidentiary standards. In Nixon v. Shrink Missouri Government PAC(2000), a case involving the constitutionality of contribution limits, the Supreme Court stated that “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Well, sure, but “novel” to whom? Who decides “plausibility”? At what point along the continuum of plausibility do judges ratchet up the evidentiary requirements? This standard does not confine judges to the facts and the law, but invites them to make factual assumptions that will support the legal conclusion they think is best. COSTS OF BEING FUZZY The lack of both legal and evidentiary clarity is especially troubling in judicial review of a political issue such as campaign finance. Unlike legislatures, federal courts are not democratically accountable. They lack political expertise, and they possess fewer comprehensive fact-finding tools. They cannot readily revise past decisions to respond to the unanticipated consequences that often stem from campaign reforms. Further, judges, unlike legislators, are not supposed to follow their political inclinations. But the Supreme Court’s failure to give clear guidelines on campaign finance may leave too much room for individual preferences to influence judicial outcomes, thereby compromising the credibility of the federal bench. Uncertainty has a constitutional cost as well. The risks of unpredictable legal doctrine might discourage Congress from attempting further campaign reform, effectively usurping legislative authority to regulate federal elections. Justice Felix Frankfurter’s warning that courts should not enter the political thicket without manageable tools is particularly salient in the campaign context. Indeed, the key electoral doctrine of “one person, one vote” was adopted precisely because it is administrable. A CLEAR GOAL On appeal of McCain-Feingold, the Supreme Court should make it a point to craft more manageable legal and evidentiary tools that lower courts can use to review campaign reforms in light of core democratic values. Let me be clear here. The Court should not clarify by mechanically upholding or striking down all reforms. While either option would simplify judicial review of campaign reform, both extremes result in severe democratic failures. An absolute right of business corporations to contribute and spend unlimited, undisclosed amounts of money in the political process would result in laws and policies based on covert political auctions. It would also reduce the incentives for individual citizens to participate in democracy. Conversely, excessive regulation designed to stop up every hypothetical campaign finance loophole would stifle a lot of participation from a broad and diverse group of citizens. Self-interested legislators, free to enact extreme campaign regulations, would likely entrench their own power by passing reforms that disadvantage challengers. In defining the shared responsibility that courts and legislatures should enjoy over campaign law, the Supreme Court must devise administrable judicial tools that do not infringe significantly on individual autonomy or allow incumbent legislators to suppress electoral competition. At the same time, these judicial tools should respect reforms that promote widespread citizen participation in the democratic process by preventing a small group from controlling or appearing to control government decision-making. In devising clear evidentiary standards, the Court should explicitly allocate burdens and standards of proof and clearly describe the types of proof needed to establish certain propositions. Pointing fingers at the three-judge panel for its untimely, bloated, and inconsistent decision in the McCain-Feingold case ignores the bigger picture: It is the Supreme Court, finally, that must use this case to clean up campaign finance doctrine. Spencer Overton is an associate professor of law at George Washington University Law School, where he specializes in election law. Overton can be reached at [email protected].

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