Bipartisan Campaign Reform Act
Encyclopedia
The Bipartisan Campaign Reform Act of 2002 (BCRA, McCain–Feingold Act, ) is a United States federal law that amended the Federal Election Campaign Act
of 1971, which regulates the financing of political campaigns
. Its chief sponsors were Senators Russell Feingold (D-WI
) and John McCain
(R-AZ
). The law became effective on 6 November 2002, and the new legal limits became effective on January 1, 2003.
As noted in McConnell v. Federal Election Commission
, a United States Supreme Court ruling on the BCRA, the Act was designed to address two issues:
Although the legislation is known as, "McCain–Feingold", the Senate version is not the bill that became law. Instead, the companion legislation, H.R. 2356—introduced by Rep. Christopher Shays (R-CT), is the version that became law. Shays–Meehan was originally introduced as H.R. 380.
Mitch McConnell
, a long-time opponent of the bill. President Bush signed the law despite "reservations about the constitutionality of the broad ban on issue advertising."http://georgewbush-whitehouse.archives.gov/news/releases/2002/03/20020327.html He appeared to expect that the Supreme Court would overturn some of its key provisions. But, in December 2003, the Supreme Court
upheld most of the legislation in McConnell v. FEC.
Subsequently, political parties and "watchdog" organizations have filed complaints with the FEC concerning the raising and spending of soft money by so-called "527 organizations" — organizations claiming tax-exemption as "political organizations" under Section 527 of the Internal Revenue Code
, but not registering as "political committees" under the Federal Election Campaign Act
, which uses a different legal definition. These organizations have been established on both sides of the political aisle, and have included high profile organizations such as the Media Fund
and the Swift Boat Veterans for Truth. 527s are financed in large part by wealthy individuals, labor unions, and businesses. 527s pre-dated McCain–Feingold but grew in popularity after the law took effect. In May 2004, the FEC voted to not write new rules on the application of federal campaign finance laws to 527 organizations. Although the FEC did promulgate a new rule in the fall of 2004 requiring some 527s participating in federal campaigns to use at least 50% "hard money" (contributions regulated by the Federal Election Campaign Act) to pay their expenses, the FEC did not change its regulations on when a 527 organization must register as a federal "political committee"-prompting Representatives Shays
and Meehan
to file a federal court lawsuit against the FEC for the Commission's failure to adopt a 527 rule. In September, 2007, a Federal District Court ruled in favor of the FEC, against Congressmen Shays and Meehan.
In December 2006 the FEC entered settlements with three 527 groups the Commission found to have violated federal law by failing to register as "political committees" and abide by contribution limits, source prohibitions and disclosure requirements during the 2004 election cycle. Swift Boat Veterans for Truth was fined $299,500; the League of Conservation Voters
was fined $180,000; MoveOn.org was fined $150,000. In February 2007, the 527 organization Progress for America Voter Fund was likewise fined $750,000 for its failure to abide by federal campaign finance laws during the 2004 election cycle.
In June 2007 the U.S. Supreme Court held, in Federal Election Commission v. Wisconsin Right to Life, Inc.
, that BCRA's limitations on corporate and labor union funding of broadcast ads mentioning a candidate within 30 days of a primary or caucus or 60 days of a general election are unconstitutional as applied to ads susceptible of a reasonable interpretation other than as an appeal to vote for or against a specific candidate. Some election law experts believe the new exception will render BCRA's "electioneering communication" provisions meaningless, while others believe the new exception is quite narrow. The Federal Election Commission's interpretation and application of the new exception during the 2008 election cycle will determine the true scope and impact of the Court's decision.
In June 2008, the section of the act known as the "millionaire's amendment" was overturned by the Supreme Court in Davis v. Federal Election Commission
http://www.law.duke.edu/publiclaw/supremecourtonline/certgrants/2007/davvfed. This provision had attempted to "equalize" campaigns by providing that the legal limit on contributions would increase for a candidate who was substantially outspent by an opposing candidate using personal wealth. During 2008 one of the cosponsors of the legislation, Senator John McCain of Arizona, touted this piece of legislation and others that he sponsored in his bid for the presidency. Senator McCain consistently voiced concern over campaign practices and their funding. "'Questions of honor are raised as much by appearances as by reality in politics, and because they incite public distrust, they need to be addressed no less directly than we would address evidence of expressly illegal corruption,' McCain wrote in his 2002 memoir Worth the Fighting For. 'By the time I became a leading advocate of campaign finance reform, I had come to appreciate that the public's suspicions were not always mistaken. Money does buy access in Washington, and access increases influence that often results in benefiting the few at the expense of the many.'"
In March 2009, the U.S. Supreme Court heard oral arguments in Citizens United v. Federal Election Commission
, regarding whether or not a heavily political documentary (about Hillary Clinton) could be considered a political ad. In January 2010, the Supreme Court struck sections of McCain–Feingold down which limited activity of corporations, saying, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Specifically, Citizens struck down campaign financing laws related to corporations and unions; law previously banned the broadcast, cable or satellite transmission of "electioneering communications" paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election. The ruling did not, as commonly thought, change the amount of money corporations and unions can contribute to campaigns. The minority said the court was making a mistake treating the voices of corporations as similar to those of people. President Barack Obama expressed his concern over the Supreme Court's decision during his State of the Union speech, delivered January 27, saying, "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems." President Obama also called the decision, "a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."
."
Federal Election Campaign Act
The Federal Election Campaign Act of 1971 is a United States federal law which increased disclosure of contributions for federal campaigns. It was amended in 1974 to place legal limits on the campaign contributions...
of 1971, which regulates the financing of political campaigns
Campaign finance
Campaign finance refers to all funds that are raised and spent in order to promote candidates, parties or policies in some sort of electoral contest. In modern democracies such funds are not necessarily devoted to election campaigns. Issue campaigns in referendums, party activities and party...
. Its chief sponsors were Senators Russell Feingold (D-WI
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
) and John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
(R-AZ
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
). The law became effective on 6 November 2002, and the new legal limits became effective on January 1, 2003.
As noted in McConnell v. Federal Election Commission
McConnell v. Federal Election Commission
McConnell v. Federal Election Commission, 540 U.S. 93 , is a case in which the United States Supreme Court upheld the constitutionality of most of the Bipartisan Campaign Reform Act of 2002 , often referred to as the McCain–Feingold Act....
, a United States Supreme Court ruling on the BCRA, the Act was designed to address two issues:
- The increased role of soft money in campaign financing, by prohibiting national political party committees from raising or spending any funds not subject to federal limits, even for state and local races or issue discussion;
- The proliferation of issue advocacy adsIssue advocacy adsIssue Advocacy Ads are types of advertisements used in political campaigns. These advertisements originate from the power of soft money, which is used to fund numerous campaign efforts. Soft money can pay for different campaign expenses, get out the vote drives, or can be transferred to local and...
, by defining as "electioneering communications" broadcast ads that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election, and prohibiting any such ad paid for by a corporation (including non-profit issue organizations such as Right to Life or the Environmental Defense Fund) or paid for by an unincorporated entity using any corporate or union general treasury funds. The decision in Citizens United v. Federal Election CommissionCitizens United v. Federal Election CommissionCitizens United v. Federal Election Commission, , was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from censoring political broadcasts in candidate elections when those broadcasts are funded by corporations or unions...
overturns this provision, but not the ban on foreign corporations or foreign nationals in decisions regarding political spending.
Although the legislation is known as, "McCain–Feingold", the Senate version is not the bill that became law. Instead, the companion legislation, H.R. 2356—introduced by Rep. Christopher Shays (R-CT), is the version that became law. Shays–Meehan was originally introduced as H.R. 380.
Legal disputes
Provisions of the legislation were challenged as unconstitutional by a group of plaintiffs led by then-Senate Majority WhipWhip (politics)
A whip is an official in a political party whose primary purpose is to ensure party discipline in a legislature. Whips are a party's "enforcers", who typically offer inducements and threaten punishments for party members to ensure that they vote according to the official party policy...
Mitch McConnell
Mitch McConnell
Addison Mitchell "Mitch" McConnell, Jr. is the senior United States Senator from Kentucky and the Republican Minority Leader.- Early life, education, and military service :...
, a long-time opponent of the bill. President Bush signed the law despite "reservations about the constitutionality of the broad ban on issue advertising."http://georgewbush-whitehouse.archives.gov/news/releases/2002/03/20020327.html He appeared to expect that the Supreme Court would overturn some of its key provisions. But, in December 2003, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
upheld most of the legislation in McConnell v. FEC.
Subsequently, political parties and "watchdog" organizations have filed complaints with the FEC concerning the raising and spending of soft money by so-called "527 organizations" — organizations claiming tax-exemption as "political organizations" under Section 527 of the Internal Revenue Code
Internal Revenue Code
The Internal Revenue Code is the domestic portion of Federal statutory tax law in the United States, published in various volumes of the United States Statutes at Large, and separately as Title 26 of the United States Code...
, but not registering as "political committees" under the Federal Election Campaign Act
Federal Election Campaign Act
The Federal Election Campaign Act of 1971 is a United States federal law which increased disclosure of contributions for federal campaigns. It was amended in 1974 to place legal limits on the campaign contributions...
, which uses a different legal definition. These organizations have been established on both sides of the political aisle, and have included high profile organizations such as the Media Fund
Media Fund
The Media Fund is a 527 group, active in U.S. politics, which supported Democrat John Kerry's campaign for President. It was formed in 2002, and is led by Harold M. Ickes, a former aide to President Bill Clinton. Its chief fundraiser is Ellen Malcolm, a former fundraiser for EMILY's List. ...
and the Swift Boat Veterans for Truth. 527s are financed in large part by wealthy individuals, labor unions, and businesses. 527s pre-dated McCain–Feingold but grew in popularity after the law took effect. In May 2004, the FEC voted to not write new rules on the application of federal campaign finance laws to 527 organizations. Although the FEC did promulgate a new rule in the fall of 2004 requiring some 527s participating in federal campaigns to use at least 50% "hard money" (contributions regulated by the Federal Election Campaign Act) to pay their expenses, the FEC did not change its regulations on when a 527 organization must register as a federal "political committee"-prompting Representatives Shays
Christopher Shays
Christopher H. Shays is an American politician. He was a Republican member of the United States House of Representatives and represented the 4th District of Connecticut....
and Meehan
Marty Meehan
Martin Thomas "Marty" Meehan is an American attorney and politician from the state of Massachusetts. He is the current Chancellor of the University of Massachusetts Lowell, a position he assumed on July 1, 2007...
to file a federal court lawsuit against the FEC for the Commission's failure to adopt a 527 rule. In September, 2007, a Federal District Court ruled in favor of the FEC, against Congressmen Shays and Meehan.
In December 2006 the FEC entered settlements with three 527 groups the Commission found to have violated federal law by failing to register as "political committees" and abide by contribution limits, source prohibitions and disclosure requirements during the 2004 election cycle. Swift Boat Veterans for Truth was fined $299,500; the League of Conservation Voters
League of Conservation Voters
The League of Conservation Voters is a political advocacy organization founded in 1969 by American environmentalist David Brower in the early years of the environmental movement. LCV's mission is to "advocate for sound environmental policies and to elect pro-environmental candidates who will adopt...
was fined $180,000; MoveOn.org was fined $150,000. In February 2007, the 527 organization Progress for America Voter Fund was likewise fined $750,000 for its failure to abide by federal campaign finance laws during the 2004 election cycle.
In June 2007 the U.S. Supreme Court held, in Federal Election Commission v. Wisconsin Right to Life, Inc.
Federal Election Commission v. Wisconsin Right to Life, Inc.
Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 , was a case in which the Supreme Court of the United States held that issue ads may not be banned from the months preceding a primary or general election.-Background:...
, that BCRA's limitations on corporate and labor union funding of broadcast ads mentioning a candidate within 30 days of a primary or caucus or 60 days of a general election are unconstitutional as applied to ads susceptible of a reasonable interpretation other than as an appeal to vote for or against a specific candidate. Some election law experts believe the new exception will render BCRA's "electioneering communication" provisions meaningless, while others believe the new exception is quite narrow. The Federal Election Commission's interpretation and application of the new exception during the 2008 election cycle will determine the true scope and impact of the Court's decision.
In June 2008, the section of the act known as the "millionaire's amendment" was overturned by the Supreme Court in Davis v. Federal Election Commission
Davis v. Federal Election Commission
Davis v. Federal Election Commission, 554 U.S. 724 , is a decision by the United States Supreme Court, which held that Sections 319 and of the Bipartisan Campaign Reform Act of 2002 unconstitutionally infringed on a candidate's First Amendment rights.-Background:Section 319 of the Bipartisan...
http://www.law.duke.edu/publiclaw/supremecourtonline/certgrants/2007/davvfed. This provision had attempted to "equalize" campaigns by providing that the legal limit on contributions would increase for a candidate who was substantially outspent by an opposing candidate using personal wealth. During 2008 one of the cosponsors of the legislation, Senator John McCain of Arizona, touted this piece of legislation and others that he sponsored in his bid for the presidency. Senator McCain consistently voiced concern over campaign practices and their funding. "'Questions of honor are raised as much by appearances as by reality in politics, and because they incite public distrust, they need to be addressed no less directly than we would address evidence of expressly illegal corruption,' McCain wrote in his 2002 memoir Worth the Fighting For. 'By the time I became a leading advocate of campaign finance reform, I had come to appreciate that the public's suspicions were not always mistaken. Money does buy access in Washington, and access increases influence that often results in benefiting the few at the expense of the many.'"
In March 2009, the U.S. Supreme Court heard oral arguments in Citizens United v. Federal Election Commission
Citizens United v. Federal Election Commission
Citizens United v. Federal Election Commission, , was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from censoring political broadcasts in candidate elections when those broadcasts are funded by corporations or unions...
, regarding whether or not a heavily political documentary (about Hillary Clinton) could be considered a political ad. In January 2010, the Supreme Court struck sections of McCain–Feingold down which limited activity of corporations, saying, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Specifically, Citizens struck down campaign financing laws related to corporations and unions; law previously banned the broadcast, cable or satellite transmission of "electioneering communications" paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election. The ruling did not, as commonly thought, change the amount of money corporations and unions can contribute to campaigns. The minority said the court was making a mistake treating the voices of corporations as similar to those of people. President Barack Obama expressed his concern over the Supreme Court's decision during his State of the Union speech, delivered January 27, saying, "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems." President Obama also called the decision, "a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."
Impact
The impact of BCRA first started being felt nationally with the 2004 elections. One immediately recognizable impact was that, as a result of the so-called stand by your ad provision, all campaign advertisements included a verbal statement to the effect of "I'm [insert candidate's name] and I approve this messageI approve this message
In American politics, "I approve this message" is a phrase said by candidates for federal office in political advertisements on television and radio in order to comply with the so-called Stand By Your Ad provision of the Bipartisan Campaign Reform Act , enacted in 2002, that...
."
External links
- McConnell v. FEC: Summary of the Supreme Court's decision
- Now Playing at Reason.tv: Former FEC Head Brad Smith on how campaign finance laws pervert politics. And why John McCain won't shake his hand. Smith calls the BCRA, "Before Campaigning, Retain Attorney."
- Full text of the bill along with a summary.