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WASHINGTON — In a stunning victory for the advocates of campaign finance reform, the Supreme Court on Wednesday rejected First Amendment challenges against the Bipartisan Campaign Reform Act of 2002 and upheld almost all its provisions. The court’s verdict, issued as the 2004 presidential campaign gets under way, came in the form of three separate opinions spanning 298 pages. It left in place the law’s sweeping prohibition on unregulated soft money in federal campaigns and its ban on the use of corporate or union funds for “electioneering communications” that mention candidates’ names in the weeks before elections. Most aspects of the law were upheld by 5-4 votes, but the majority used language that is likely to bolster enforcement of the new law in the coming presidential primaries and general election and to form the basis for further reform efforts. “We are under no illusion that BCRA will be the last congressional statement on the matter,” wrote Justices John Paul Stevens and Sandra Day O’Connor in the court’s main ruling. “Money, like water, will always find an outlet.” The law’s sponsors, Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., and Reps. Christopher Shays, R-Conn.. and Marty Meehan, D-Mass., said in a joint statement, “This opinion represents a landmark victory for the American people in the effort to reform their political system. Now that the court has spoken, we must make sure that the law is properly interpreted and enforced.” Supporters of the law said the ruling would boost litigation already under way against the Federal Election Commission for its allegedly weak regulations implementing the law. Fred Wertheimer, president of Democracy21 and a leading strategist behind the law, said the ruling “represents a historic victory in the battle to control the undue influence of money in American politics and to protect our democracy against corruption and the appearance of corruption.” The landmark ruling caps a tortured path for the law and the litigation challenging it. The law called on the courts to give any challenges expedited review, but a three-judge panel in D.C. took 14 months to issue a fractured and lengthy ruling. Indeed, the panel’s decision, widely criticized for its sprawling nature and lack of focus, was not frequently cited in Wednesday’s Supreme Court’s decision. The high court took the rare step of ordering oral arguments in September, before its term usually begins, and a ruling has been awaited ever since. The Supreme Court’s holding Wednesday in McConnell v. Federal Election Commission, No. 02-1674, was sharply attacked by dissenting justices as well as opponents of the law, who saw the ruling as an erosion of free speech that could have broad implications beyond BCRA. Justice Clarence Thomas called the rulings “an assault on the free exchange of ideas.” The news media, which also seek to influence elections through editorials, could be the next target, Thomas warned. “The chilling endpoint of the court’s reasoning is not difficult to see: outright regulation of the press.” The Supreme Court’s last major pronouncement on the free speech implications of campaign reform was the compromise landmark opinion in Buckley v. Valeo in 1976. Some of that ruling’s equivocating language and structure have slowed congressional reform efforts in the years since. But Wednesday’s ruling, while rooted in Buckley, appears to give little comfort to opponents of such legislation. It also gives general support to “anti-circumvention” efforts by Congress, suggesting that whatever methods interest groups devise to get around BCRA could also be stopped by Congress. “The court now seems to support the notion that any aggregation of funds, any effort to amplify one person’s voice, is to be viewed as corrupting,” said Erik Jaffe, a D.C. solo practitioner who wrote a brief against the law for the Cato Institute. The main Stevens-O’Connor ruling reflects a strikingly broad suspicion of money in politics that goes beyond what it termed “classic quid pro quo” donations that buy the vote of an officeholder or candidate. Stevens and O’Connor extensively review the “disturbing” findings of the Senate committee that looked into campaign abuses in the 1996 presidential election. The torrent of soft money resulted in a “meltdown” of the campaign finance system, the committee concluded. Giving the First Amendment too much weight in the context of campaign regulation, the justices asserted, “would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies but according to the wishes of those who have made large financial contributions valued by the officeholder.” Their ruling upheld the key soft money and so-called sham issue ad provisions, but also upheld restrictions on use of soft money by state parties. On the electioneering ads, the court said unions and corporations — including nonprofit corporations — were free to form political action committees, with their accompanying restrictions and disclosure provisions, that could sponsor the same advertising. Requiring these entities to use segregated funds, the majority agreed, was only a minimal regulation, not a restriction, on speech. Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined the majority in this ruling. Justices Thomas, Antonin Scalia and Anthony Kennedy and Chief Justice William Rehnquist authored dissents on different aspects of the majority rulings. The court also struck down two relatively minor provisions of the law, one banning political contributions by minors 17 years old or younger, and the other requiring political parties to choose between making independent or coordinated expenditures for the benefit of candidates. In a separate ruling, authored by Rehnquist, the court sidestepped several other provisions, finding that the plaintiffs lacked standing to challenge the increase in the contribution limits for “hard money” and the special “millionaire” rules that are triggered when one candidate in a race uses substantial personal funds in the campaign. In the third ruling, written by Justice Breyer, the court upheld the part of the law that requires broadcasters to keep detailed records of politics-related advertising. The rules, challenged by broadcasters as an administrative burden that violates the First Amendment, are a “small drop in a very large bucket,” Breyer said. “This is the most important decision on money in politics since Buckley v. Valeo,” said Tom Gerety, executive director of the Brennan Center for Justice, which was a leading advocate for the law. “Without this decision, loopholes would continue to swallow up our campaign finance rules.” Roger Witten, a New York partner at Wilmer, Cutler & Pickering, which argued in favor of the law, said the ruling was a “very emphatic, unequivocal affirmation” that said, “Congress is entitled to a certain amount of leeway and deference in this area.” The ruling in 12 consolidated cases was a bitter disappointment for dissenting justices and for opponents of the legislation. Justice Scalia called it a “sad day for freedom of speech,” noting that the court in recent years has protected tobacco advertising and virtual child pornography, but now has “smiled 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 Kennedy said that, while the majority purports to be following Buckley, in fact “the majority, to make its decision work, must abridge speech where Buckley did not.” Thomas Donohue, president of the U.S. Chamber of Commerce, said, “Prohibiting the use of TV and radio ads in the days and weeks right before an election will blindfold voters just as they are interested in learning about the candidates and the issues. This decision is a disappointing step back toward less information, fewer options, and restricted speech.” The National Rifle Association, one of the leading challengers of the law, will have to re-examine its advertising and media expenditures in light of the ruling, said its lawyer Charles Cooper of D.C.’s Cooper & Kirk. “A politician can attack by name the National Rifle Association,” said Cooper, “but the NRA cannot utter the attacker’s name in its own response. Five justices think that is constitutional, and that is a crying shame.” The rulings were announced with little fanfare by Rehnquist, even though he dissented from many of the holdings. Because the rulings and dissents totaled nearly 300 pages, Rehnquist told spectators in the courtroom that he could offer “only abbreviated outlines” of the decisions. When he was through with the summary, including a lengthy recitation of which justices dissented in which sections, Rehnquist said, “Now I’ll pause for a breath.” Justices looked on with amusement as reporters who heard the announcement scrambled for the exit to obtain printed copies of the rulings. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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