X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Consider it an unexpected aspect of the Clinton-Gore legacy. Former President Bill Clinton and Vice President Al Gore get a good deal of the credit for the Supreme Court’s embrace last week of the sweeping campaign finance reform act. But Clinton supporters will hardly be proud of their role. Many lawyers and political observers agree that the fund-raising scandals that surfaced after the 1996 Clinton-Gore re-election campaign served as a major impetus for the sweeping McCain-Feingold law that Congress passed last year — and for the high court’s historic ruling upholding most of the statute. Although Clinton and Gore certainly didn’t invent the solicitation of soft money or its use to fund electioneering ads that skirted the bounds of legality, they were among the skilled practitioners who carried those techniques to ever-higher and more audacious levels. The Supreme Court took note. The Court’s majority opinion, written by Justices John Paul Stevens and Sandra Day O’Connor, reads in places more like a catalog of political abuses than a sober consideration of the First Amendment’s impact on campaign finance law. The opinion relies heavily on the six-volume report of a special committee chaired by then-Sen. Fred Thompson (R-Tenn.) that looked into the 1996 fund-raising practices of both national parties. The ruling specifically refers, with palpable disdain, to White House coffees for major Clinton donors; to a $300,000 soft-money donation by Roger Tamraz, a businessman seeking Clinton’s support for an oil pipeline; and to GOP promises of access to governors, senators, and members of Congress made to big givers. “The Court looked at the facts. It looked at the fund-raising scandals of 1996 and 2000,” says Lawrence Noble, executive director of the Center for Responsive Politics, a nonprofit research group that supports campaign reform. “After the [1976] Buckley decision, things seemed to be under control. But as time went on, the fund raising became bolder. The selling of access became more common.” “ Buckley was grounded in legal theory. This decision was grounded in practicality,” Noble adds. Says American Enterprise Institute scholar Norman Ornstein, a principal drafter of the law: “The Court said, in effect, that it would defer to Congress if Congress had made findings that there had been abuses. And Congress had made findings. So the Court deferred.” Yet even critics of the Clinton fund-raising shenanigans point out that many things had to happen, even beyond the money scandals, before their cause could succeed. In fact, the movement’s roots go deeper. The Watergate scandal inspired a major campaign-reform law in 1974. But this took a hit in Buckley v. Valeo, in which the Supreme Court permitted contribution limits but ruled out, on constitutional grounds, restrictions on expenditures by candidates. The first bill in the current wave of campaign reform was introduced in the Senate in 1985. A measure passed both houses of Congress in 1992, but was vetoed by the first President George Bush. And the first joint effort by Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) was placed in the hopper in 1995, nearly seven years before the current president signed a bill into law. “There was no one single factor,” says Fred Wertheimer, president of Democracy 21 and a longtime reform backer. “It was achieved through a series of events — building-block activities that kept the issue moving forward, kept the pressure on.” Wertheimer says the most immediate impetus came from the sudden decision in May 2001 by Sen. James Jeffords of Vermont to align himself with the Democrats. That switched control of the Senate and made Tom Daschle of South Dakota the majority leader instead of Trent Lott (R-Miss.), an opponent of McCain- Feingold. Daschle worked with the House leadership to keep the bill out of a conference committee that many supporters feared would be its grave. “The will of the American people had become clear,” says Wertheimer. “But in the end, there was also some luck.” It’s one thing to get a bill passed — and another thing to have it upheld by the Supreme Court in the face of a concerted challenge to its constitutionality. And in order to bring about a ruling like the one the high court handed down on Dec. 10, advocates had to find a way to get the facts about recent campaign scandals before the Court. Randolph Moss, a partner at D.C.’s Wilmer, Cutler & Pickering who worked on the team defending the law, says a key moment occurred at the very first status conference before a special three-judge panel in the U.S. District Court for the District of Columbia. “We told the judges that we wanted to develop a factual record,” says Moss. “The plaintiffs [opposing the law] said there was no need to do so. Well, the District Court said we could do so, in a short time frame. This turned out to be a case in which identifying particular problems with the [campaign finance] system made a huge difference.” As a result, the record in McConnell v. Federal Election Commission included things like a lengthy report by Brookings Institution scholar Thomas Mann that reviewed the history of soft money and political advertising all the way through the Clinton scandals. Mann’s report refers to “the audacious move by then-President Bill Clinton and his political consultant, Dick Morris, to finance an ambitious political advertising campaign under the guise of ‘issue advocacy.’ “ “Students of campaign finance,” according to Mann’s report, “thought it an extraordinary leap for a presidential candidate, especially one accepting public funding, and a national political party to argue that the express advocacy standard gave them license to craft and broadcast unlimited political ads and to finance them in large part with soft money.” It was no accident, the Wilmer, Cutler team and other lawyers told the courts, that the key features of the McCain-Feingold law were a prohibition on soft money and a tightening of the express advocacy standard. In addition to handing the Supreme Court a succinct history of political scandals, lawyers also needed to explain to the justices how the advertising business works today. Buckley had distinguished between express advocacy ads, which tell voters to “vote for” or “elect” a candidate, and issue advocacy ads, which don’t use those “magic words.” It held that the former are, constitutionally, much easier to regulate than the latter. McCain-Feingold, however, bars the use of corporate and labor union money for issue advocacy ads as well as express advocacy ads. So the New York-based Brennan Center for Justice and other groups funded studies that showed that virtually no political ads these days use the “magic words.” The high court found this argument convincing. “Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted. And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election,” the Court wrote. Many observers say McCain’s 2000 presidential campaign, in which he hammered at the campaign-reform issue, kept it in the public eye and helped the bill pass. Others say ineffective regulation by the Federal Election Commission was also a factor. “A pivotal change was a series of FEC rulings that allowed the creation and the exponential growth of soft money over the years,” says Mark Buse, a McCain staffer from 1983 through 2002. “These rulings led directly to the change in corporate culture that led companies to pump millions of dollars into the political system.” Buse is now a partner at ML Strategies, a lobbying affiliate of Mintz Levin Cohn Ferris Glovsky and Popeo. “Money was flowing to the parties from two sources — corporations and labor unions — that weren’t supposed to give at all,” says Alan Morrison, a lawyer at the Public Citizen Litigation Group. “The FEC could have cried out to Congress, but it didn’t.” Bobby Burchfield, a partner at Covington & Burling who argued against the McCain-Feingold law on behalf of the Republican National Committee, takes a different view of the law’s origins. “My theory is that the reformers don’t expect this [statute] to work,” says Burchfield. “They expect it to fail. Then they can return to Congress and get public financing for all elections, even though an overwhelming majority of Americans now opposes public funding. For 25 years, ever since Buckley, the reformers have been trying to squeeze all private money out of politics.” But in the decision’s immediate aftermath, reform advocates sound overjoyed. “This gives us an enormous boost,” says Democracy 21′s Wertheimer. “This is a victory of the American people over a system that had become unacceptable everywhere in the country except for Washington, D.C.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.