Knocking Down the Myths About BCRA
On the fifth anniversary of the Bipartisan Campaign Reform Act, many of the benefits are apparent for all to see: no huge soft-money contributions from labor unions and corporations, new small-donor support for the parties, a renewed emphasis on citizen involvement. And of course the same tired collection of half truths, distortions of fact and convenient omissions from the critics are to be expected. But one of the many tirades against BCRA gave me pause. Oddly enough, it was an opinion piece by a college freshman for his campus newspaper. What gave me pause was not that the piece parroted all the usual arguments of campaign finance reform opponents, but that the author would have been in eighth grade when the law passed and likely completely unaware of pre-BCRA fundraising practices in Washington, D.C.
Though most reform opponents and revisionist historians don’t have the excuse of having been in junior high school when BCRA was debated, the opinion piece brought home the wisdom behind the old saying that if something is repeated often enough, no matter how outrageous, there are those who will come to take it as gospel.
Accordingly, it is worthwhile to review the standard planks used to build nearly every attack on BCRA and to judge them against the pre-BCRA reality.
The first plank in almost any attack on BCRA is the mischaracterization of the goal of the law to say that it was intended to remove money from politics — an assertion as absurd as it is unconstitutional.
The sponsors of BCRA sought to remove the corrupting influence of huge soft-money contributions used to skirt contribution limits, and the presence of corporate and labor money in national party accounts despite the banning of such funds by Congress many years before. The soft-money prohibition in BCRA has been an undisputed success. That is to say no one disputes that soft money is gone from the national parties. Candidates and elected officials can no longer solicit these contributions, and individuals, corporations and unions can no longer utilize their six- and seven-figure soft-money checks to curry favor with lawmakers. Interestingly, almost no one suggests that things were better when the parties, and their officeholders, were chasing soft money.
Critics today rarely mention what used to be the standard second plank of any attack on BCRA — that the soft-money ban would be a “suicide pact” for the Democratic Party, and “Armageddon” for the Republican Party. The critics of BCRA should remember (even if college freshmen may not) that now-Senate Minority Leader Mitch McConnell (R-Ky.) announced that the passage of BCRA would eviscerate the national party committees by cutting off unlimited soft-money donations.
Well, as it turns out, Sen. McConnell and the other BCRA opponents were dead wrong. The national party committees are doing just fine. In the first two election cycles under BCRA, those parties have raised more hard money than they did in hard money and soft money combined in the two cycles prior to the law taking effect.
Ironically, the replacement plank in the anti-BCRA platform seems to be that the large sums currently being raised by presidential candidates are proof of the failure of BCRA. This assertion ties back into the first historical revision — that BCRA was supposed to remove money from politics. This claim, too, has no basis in fact. The presidential public financing system was never addressed by BCRA, though many of the law’s most virulent opponents also have been responsible for gradually starving the system of funding and utility by preventing even routine maintenance.
The current path of presidential campaign fundraising was set before BCRA by George W. Bush’s $100 million-plus presidential run, outside of the public funding system, in the 2000 primaries. However, even the sums raised today outside of the primary public-funding system have their silver lining — they come in each campaign’s case from tens of thousands of political supporters in surprisingly low average amounts: The campaign of Sen. Barack Obama (D-Ill.) estimates as many as 100,000 donors, and the campaigns of Sens. John McCain (R-Ariz.) and Hillary Rodham Clinton (D-N.Y.) estimate 60,000 donors — in the first quarter of 2007 alone.
Another favored plank of critics has been to lay the blame for the impact of 527s in 2004 on BCRA’s doorstep. Unsurprisingly BCRA drove individuals, corporations and unions to seek new avenues to avoid contribution limits. However, what was not predictable was the utter failure of the Federal Election Commission to regulate 527 groups as political committees once they began to raise and spend money to influence federal elections. Successful court challenges to this FEC inaction by BCRA’s Congressional drafters has forced the commission to take at least some enforcement steps against the new 527s that sprang up to evade federal contribution limits. And while the court challenges continue, the role of 527s as vehicles of evasion appears on the wane.
The final and perhaps most important plank in the anti-BCRA platform is the contention that BCRA violates the First Amendment by “outlawing” or “imposing a blackout period” on issue ads in the lead-up to federal elections. This too is patently untrue (and don’t just take the Supreme Court’s word for it in McConnell v. FEC). The reality is that any individual, corporation or union is free at any time to air ads mentioning candidates by name. BCRA requires only that corporations and unions not use their general treasury funds to pay for ads naming candidates within 30 days of a primary election or within 60 days of a general election. PAC funds can of course be used to run these ads naming candidates during those time periods or the ads can be run without naming candidates yet still urging viewers to contact their Representative or Senator. These requirements were included not to stifle speech or protect incumbents as reform opponents allege but to prevent the blatant abuse of what the Supreme Court clearly recognized as “sham issue ads” paid for with impermissible corporate and labor funds.
Since taking their challenge of BCRA unsuccessfully all the way to the high court, reform opponents have fought the law every step of the way, continually bringing new challenges in the courts and at the Federal Election Commission, where they have found some ready allies. But despite the incessant criticisms and endless attacks, none argue that our national parties’ fundraising system was cleaner before BCRA than it is now.
BCRA’s sponsors freely admitted that the legislation would not be the silver bullet to solve all the myriad abuses regularly visited on our political process. But the law has had a significant and positive impact, and it has left our democratic process stronger and more inclusive. The candidates and party committees have had to go out and beat the bushes to fill their war chests, and that is a far better situation than their going hat-in-hand to the individuals, corporations and unions with the very deepest pockets.
In some circles BCRA’s successes are not allowed to speak for themselves, so this seemed a good time to address a little bit of the revisionist history championed by the opponents of reform. Somewhere out there is an eighth-grader a few years removed from writing an opinion piece for his college newspaper, and it might be helpful if he heard the truth instead of the propaganda.
David Vance is director of communications and research at The Campaign Legal Center.