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112 McCONNELL v. FEDERAL ELECTION COMM'N Counsel were Assistant Attorney General Keisler,Malcolm L. Stewart, Gregory G. Garre, Douglas N. Letter, Dana J. Martin, Terry M. Henry, Lawrence H. Norton, Richard B. Bader, and David Kolker. Seth P. Waxman argued the cause for the intervenordefendants below, Senator John McCain et al. With him on the briefs were Randolph D. Moss, Edward C. DuMont, Paul R. Q. Wolfson, Roger M. Witten, Burt Neuborne, Frederick A. 0. Schwarz, Jr., Charles G. Curtis, Jr., David J. Harth, Bradley S. Phillips,E. Joshua Rosenkranz, Alan B. Morrison, Scott L. Nelson, Eric J. Mogilnicki, Michael D. Leffel, Fred Wertheimer, Alexandra Edsall, and Trevor Potter. Laurence E. Gold argued the cause for plaintiffs below, the American Federation of Labor and Congress of Industrial Organizations et al., appellants in No. 02-1755 and appellees in Nos. 02-1676 and 02-1702. With him on the briefs were Jonathan P. Hiatt, Michael B. Trister, and Larry P. Weinberg. Jay Alan Sekulow argued the cause for plaintiffs below, Emily Echols et al. With him on the brief were James M. Henderson, Sr., Stuart J Roth, Colby M. May, Joel H. Thornton, Walter M. Weber, James Bopp, Jr., Richard E. Coleson, and Thomas J Marzen. Briefs in No. 02-1675 were filed for appellants National Rifle Association et al. by Charles J. Cooper, David H. Thompson, Hamish P. M. Hume, Brian S. Koukoutchos, and Cleta Mitchell. Briefs in No. 02-1733 were filed for plaintiffs-appellants/ cross-appellees National Right to Life Committee, Inc., et al. by James Bopp, Jr., Richard E. Coleson, and Thomas J Marzen. Briefs in No. 02-1734 were filed for appellant American Civil Liberties Union by Mark J. Lopez, Steven R. Shapiro, and Joel M. Gora.

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McConnell v. Federal Election Commission

Judgment

Question Presented: Whether the two principal features of Bipartisan Campaign Reform Act (BCRA) — (1) the soft-money ban on national, state, and local political parties (Title I), and (2) the regulation of electioneering communications by corporations and unions, including disclosure requirements (Title II) — violated the First Amendment's protections of free speech and association. Subsidiary issues included whether BCRA exceeded Congress's Elections Clause authority, violated principles of federalism, violated equal protection by treating political parties differently from interest groups, and whether specific provisions (including the ban on contributions by minors, the "choice" provision requiring parties to choose between coordinated and independent expenditures, and various disclosure requirements) were constitutional.

Alleged Acts: In 2002, Congress enacted the Bipartisan Campaign Reform Act (BCRA), the most significant campaign finance legislation since the 1974 FECA amendments. BCRA responded to three developments that Congress identified as undermining the campaign finance regulatory framework established by FECA and upheld in Buckley v. Valeo. First, political parties exploited a loophole by raising unlimited "soft money" (funds not subject to FECA's source, amount, or disclosure restrictions) for mixed-purpose activities — including get-out-the-vote drives, generic party advertising, and legislative advocacy ads mentioning federal candidates — so long as the ads did not "expressly advocate" a candidate's election or defeat. Second, corporations, unions, and outside groups ran broadcast advertisements that were specifically intended to influence federal elections but avoided FECA's restrictions by eschewing "magic words" of express advocacy (e.g., "vote for," "defeat"), instead purporting to discuss "issues" while clearly targeting candidates. The statute's principal features were Title I, which regulated soft money by banning national party committees from raising or spending non-federal funds (§323(a)), restricting state and local parties from using soft money for "federal election activity" (§323(b)), restricting solicitations by party committees on behalf of tax-exempt organizations (§323(d)), and limiting federal candidates' and officeholders' solicitation of soft money (§323(e)); and Title II, which prohibited corporations and unions from using general treasury funds for "electioneering communications" — broadcast ads aired within 30 days of a primary or 60 days of a general election that refer to a clearly identified federal candidate (§203, amending FECA §316(b)(2)) — and imposed disclosure requirements on persons funding such communications (§201, amending FECA §304).

Procedural history: A three-judge panel issued a lengthy per curiam opinion that split on numerous provisions. The panel (Judges Kollar-Kotelly, Leon, and Henderson) upheld some parts of BCRA and struck down others.

Summary: McConnell v. FEC was the most comprehensive campaign finance decision since Buckley v. Valeo (1976). The Supreme Court largely upheld the Bipartisan Campaign Reform Act (BCRA) of 2002, including its two principal features: (1) the soft-money ban prohibiting national, state, and local political parties from raising and spending unregulated funds for federal election activities (Title I), and (2) the regulation of "electioneering communications" — broadcast ads aired within 30/60 days of an election referring to a federal candidate — including the prohibition on corporate and union treasury funds and the disclosure requirements (Title II). The Court applied the "closely drawn" scrutiny standard for contribution limits and found that the government's interest in preventing corruption and its appearance — extending beyond quid pro quo exchanges to "undue influence" — justified the soft-money restrictions. Critically, the Court rejected the argument that Buckley had established a constitutionally mandated line between "express advocacy" and "issue advocacy," holding instead that the "magic words" test was merely a product of statutory interpretation adopted to avoid vagueness concerns, and that BCRA's more precise definition of "electioneering communication" was constitutional. The Court struck down only two provisions: the "choice" provision requiring parties to choose between coordinated and independent expenditures (§213), and the ban on contributions by minors (§318). The decision represented the high-water mark of campaign finance regulation and was later significantly narrowed by FEC v. Wisconsin Right to Life (2007), which established the "as-applied" challenge standard for electioneering communications, and Citizens United v. FEC (2010), which struck down the corporate/union treasury fund prohibition as applied to independent expenditures.

Conclusion: In a complex, multi-part opinion, the Supreme Court largely upheld BCRA — affirming the district court in part and reversing in part. The Court upheld the ban on national party committees soliciting, receiving, directing, or spending soft money, applying the "closely drawn" scrutiny standard for contribution limits under Buckley. The Court found that the governmental interest in preventing actual or apparent corruption extended beyond quid pro quo exchanges to "undue influence on an officeholder's judgment, and the appearance of such influence." The record was "replete with examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations." The Court upheld restrictions on state and local parties using soft money for "Federal election activity" (voter registration, GOTV, generic campaign activity, public communications referring to federal candidates, and employee time). Congress reasonably predicted that donors would redirect soft money to state committees after §323(a), and preventing that shift qualified as an important governmental interest. The Levin Amendment — allowing state and local committees to use a mix of hard money and "Levin funds" (subject to state regulation and a $10,000/year contribution cap) for certain activities — was also upheld. The Court upheld the restriction on party committees soliciting funds for or making donations to §501(c) tax-exempt organizations and §527 political organizations engaged in federal election activities, as a valid anti-circumvention measure. The Court narrowly construed the "donations" ban to apply only to soft-money donations, not to funds already raised in compliance with FECA. The Court upheld the ban on federal candidates and officeholders soliciting, receiving, directing, transferring, or spending soft money in connection with federal elections, as well as the limits on their soft-money activities for state and local elections. The Court rejected plaintiffs' arguments that Title I exceeded Congress's Elections Clause authority or violated the Tenth Amendment, holding that Title I regulates private parties' conduct, imposes no requirements on state officials, and leaves states free to enforce their own restrictions. The Court rejected the argument that BCRA discriminated against political parties in favor of interest groups, noting that BCRA actually favors parties in many ways and that Congress may consider the "salient, real-world differences between parties and interest groups." The Court rejected plaintiffs' argument that Buckley established a constitutionally mandated line between "express advocacy" and "issue advocacy." The Court held that the express advocacy limitation was a product of statutory interpretation, not a constitutional command — it was adopted to avoid vagueness concerns with the specific statutory language at issue in Buckley. BCRA's definition of "electioneering communication" (broadcast ads within 30/60 days of an election referring to a clearly identified candidate) was held to be both easily understood and objectively determinable, so the vagueness concern was inapposite.

Legal Issue(s)

Campaign Finance

Applicable Law(s): Bipartisan Campaign Reform Act, Federal Election Campaign Act, First Amendment, Tenth Amendment, and Article 1, Section 4 (Elections Clause) of the United States Constitution

Region: Americas

Country: United States of America

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: Dec 10, 2003

Geolocation

Latitude: 38.890591

Longitude: -77.004745

: Geolocation

Link: https://tile.loc.gov/storage-services/service/ll/usrep/usrep540/usrep540093/usrep540093.pdf

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McConnell v. Federal Election Commission

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