We’re encouraged that the Supreme Court convened for oral arguments on the Bipartisan Campaign Reform Act almost a month ahead of the start of its regular session. It indicates that the court understands the importance of moving quickly in the 2004 election cycle to decide what the financial rules will be. We trust that the Supreme Court will not get bogged down in the kind of five-month wrangling that unconscionably delayed an appeals court’s decision until May.
Along with every other observer of the justices’ questions, we have no idea how the court’s majority will rule. Chief Justice William Rehnquist, who voted with the majority in a 1990 case upholding Michigan’s restrictions on corporate campaign contributions, appeared to disavow that position, suggesting that Justice Sandra Day O’Connor will once again be in the decisive swing position. Her inclinations were impossible for most observers to divine from her questions.
What we hope will happen is that the justices will find that BCRA’s ban on soft money is not unconstitutional and that they will allow at least that part of the law to remain in effect. In the past, the Supreme Court has upheld restrictions on the use of corporate and union funds to influence elections because such contributions carried with them the potential and appearance of corruption.
That is exactly what motivated majorities in both houses of Congress to pass BCRA. President Bush signed the bill. So, to follow precedent and show due respect to the “political branches” of the government, it seems logical that the court should uphold at least this part of BCRA.
We don’t claim that the soft-money ban is functioning as we or other supporters of the law had hoped. As Solicitor General Theodore Olson told the court, BCRA is by no means Congress’ final word on campaign finance. The pattern, he said, is “legislation, followed by exploitation of loopholes, followed by legislation.”
In this case, the loophole exploitation process has been instantaneous and massive, raising legitimate questions about BCRA’s long-term value. But, we submit, it ought to be tried for at least one election cycle to see how it works. And, if it doesn’t, it should be changed by Congress — not “willy-nilly,” as Rehnquist suggested, but after due deliberation.
We are more ambivalent about BCRA’s restrictions on so-called “electioneering issue ads” just prior to elections. These may not pass constitutional muster. If not, we hope that the court will leave as much of the rest of BCRA standing as possible and allow Congress to fix it later. Most of all, we hope that the court will act soon.