AP GOVERNMENT

UNIT TWO TEST  1ST QUARTER

ESSAY TOPICS AND KEY TERMS/CONCEPTS

 

CHAPTER 8 POLITICAL PARTIES – CHAPTER 9 NOMINATIONS – CHAPTER 10 CAMPAIGNS AND ELECTIONS

1.   Explain the five major tasks performed by parties as linkage institutions.  Provide examples to support your answer.

 

2.   Give a brief description of the organizational structure of political parties.  Provide specific examples from the national, state and

      local level to support your answer.

3.   2004 Question 3:  Minor parties (third parties) have been a common feature of United States politics.

(a)      Describe the point of view expressed about minor parties in the political cartoon on the next page.

(b)     Identify and explain how two rules of the United States electoral system act as obstacles to minor-party candidates winning elections.

                (c)   Minor parties make important contributions to the United States political system in spite of the institutional obstacles to

                     their candidates’ success.  Describe two of these contributions.

4.  Explain the major steps and process of the “Nomination Game” in our election system.  Provide specifics from class and your text

     to support your  answer.

5.  Explain the major steps and process of the “Campaign Game” in our election system.  Provide specifics from class and your text

     to support your answer.

6.  Explain how campaign financing is regulated under the following:

a.   The Federal Election Campaign Act of 1974 (plus amendments).

b.   The Bipartisan Campaign Finance Reform Act of 2002 (McCain-Feingold Act).

c.   McConnell v. FEC. and FEC v. Wisconsin Right to Life.

     Give specifics from class, your text and the BCFRA to support your answer.

7.  1998 Question 4:  Elections in the United States are characterized by low voter turnout.  Discuss TWO demographic

     characteristics associated with nonvoting and THREE institutional obstacles associated with nonvoting.

8.  2002 Question 4:  In the last half of the twentieth century, voter turnout in federal elections has declined.  During the same

     period, voter turnout has been higher in presidential elections than in midterm elections.

        (a)   Identify two factors that have contributed to the overall decline in turnout in federal elections and explain how each

              factor has contributed to the overall decline.

(b)  Identify and explain two reasons why voter turnout has been higher in presidential elections than in midterm elections.

9.  2007 Question 1:  A significant feature of the Electoral College is that most states have a winner-take-all system.

a.   Describe the winner-take-all feature of the Electoral College.

                b.   Explain one way in which the winner-take-all feature of the Electoral College affects how presidential candidates from

                   the two major political parties run  their campaigns.

c.        Explain one way in which the winner-take-all feature of the Electoral College hinders third-party candidates.

d.       Explain two reasons why the Electoral College has not been abolished.

10. 2008 Question 4:  “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by

      any State on account of race, color, or previous condition of servitude.”  (15th Amendment to the Constitution 1870)

      Despite the ratification of the 15th Amendment, voter turnout among African American citizens was very low throughout the first

      half of the twentieth century.  Over the past 50 years, civil rights policies have changed substantially, along with a significant

      increase in African American voter turnout.

(a)     Explain how two measures taken by some states prior to the 1960s affected voter turnout among African American citizens.

(b)     Facing discrimination at the voting booth, many African American citizens turned to alternative forms of political participation.  Describe two alternative forms of participation that helped bring about changes in civil rights policies.

(c)     Choose one of the forms of participation you described in (b) and explain why it was effective in changing civil rights policies.

               

KEY TERMS AND CONCEPTS

Blanket primaries: nomination contests where voters are presented with a list of

the candidates from all the parties and allows them to pick candidates from all

parties.

Coalition: a set of individuals and groups supporting a political party.

Coalition governments: governments where smaller parties combine with larger

parties to control half of the seats in the legislature.

Closed primaries: nomination contests where only people who have registered in

advance with the party can vote.

Critical election: an election where each party's coalition of support begins to

break up and a new coalition of forces is formed for each party.

Linkage institutions: institutions such as parties, elections, interest groups, and

the media translate inputs from the public into outputs from policymakers.

National chairperson: the person responsible for taking care of the day-to-day

activities and daily duties of the party.

National committee: a coalition of representatives from the states and territories

charged with maintaining the party between elections.

National convention: the supreme power within each party, which meets every

four years, writes the party platform, and nominates candidates for president and

vice president.

New Deal coalition: the new coalition of forces (urban, unions, Catholics, Jews,

the poor, southerners, African Americans, and intellectuals) in the Democratic party

that was forged as a result of national economic crisis associated with the Great

Depression.

Open primaries: nomination contests where voters can decide on election day

whether they want to participate in the Democratic or Republican contest.

Party competition: the battle between the two dominant parties in the American

system.

Party dealignment: when voters move away from both parties.

Party eras: occasions where there has been a dominant majority party for long

periods of time.

Party identification: the self-proclaimed preference for one or the other party.

Party image: is what voters know or think they know about what each party

stands for.

Party machine: a particular kind of party organization that depends on both

specific and material inducements for rewarding loyal party members.

Party neutrality: when voters have an indifferent attitude toward both parties.

Party realignment: process whereby the major political parties form new support

coalitions that endure for a long period.

Patronage: one of the key inducements used by machines whereby jobs are given

for political reasons rather than for merit or competence alone.

Political party: a team of men and women seeking to control the governing

apparatus by gaining office in a duly constituted election.

Proportional representation: an electoral system where legislative seats are

allocated on the basis of each party's percentage of the national vote.

Rational-choice theory: a theory that seeks to explain political processes and

outcomes as consequences of purposive behavior, where political actors are assumed

to have goals and who pursue those goals rationally.

Responsible party model: an ideal model of party organization recommending that

parties provide distinct programs, encourage candidates to be committed to the

party platform, intend to implement their programs, and accept responsibility for

the performance of government.

Third parties: minor parties which either promote narrow ideological issues or are

splinter groups from the major parties.

Ticket-splitting: voting with one party for one office and another for other offices.

Winner-take-all system: an electoral system where whoever gets the most votes

wins the election.

Campaign strategy: the way candidates use scarce resources to achieve the

nomination or win office.

Caucus: a meeting to determine which candidate delegates from a state party will

support.

Direct mail: the use of targeted mailings to prospective supporters, usually compiled

from lists of those who have contributed to candidates and parties in the past.

Federal Election Campaign Act: 1974 legislation designed to regulate campaign

contributions and limit campaign expenditures.

Federal Election Commission (FEC): A bipartisan body charged with

administering campaign finance laws.

Frontloading: states’ decisions to move their presidential primaries and caucuses to

earlier in the nomination season in order to capitalize on media attention.

Matching Funds: money provided to qualifying presidential candidates from the

Presidential Election Campaign Fund, the amount of which is determined by the

amount of contributions raised by the candidate.

McGovern-Fraser Commission: a committee in the Democratic party charged with

recommending changes in party rules to promote more representation of women and

minorities in the delegate selection process.

National party convention: a meeting of the delegates from each state to

determine the party's nominee for president.

National primary: a proposal by critics of the caucuses and presidential primaries

systems who would replace these electoral methods with a nationwide primary held

early in the election year.

Nomination: a party's official endorsement of a candidate for office.

Party platform: the party’s statement of its goals and policies for the next four

years.

Political Action Committee (PAC): a legal entity formed expressly for the purpose

of contributing money to candidates and influencing electoral outcomes.

Presidential Election Campaign Fund: Money from the $3 federal income tax

check-off goes into this fund, which is then distributed to qualified candidates to

subsidize their presidential campaigns.

Presidential primaries: a state-level election to determine which candidate the

state’s delegates will support.

Regional primaries: a proposal by critics of the caucuses and presidential primaries

to replace these electoral methods with a series of primaries held in each geographic

region.

Selective perception: the act of paying the most attention to things that one already

agrees with or has a predisposition towards.

Soft money: money raised by political parties for voter registration drives and the

distribution of campaign material at the grass roots level.

Superdelegates: delegates to the Democratic party's national convention who obtain

their seats on the basis of their positions within the party structure.

Civic duty: a belief in the obligation to vote.

Electoral college: the institution designated in the Constitution whereby a body of

electors selects the president and vice president.

Initiative petition: direct democracy technique that allows proposed legislative

items to be placed on a statewide ballot when enough signatures are obtained.

Legitimacy: widely-shared belief that a democratic government was elected fairly

and freely.

Mandate theory of elections: the belief that the election winner has a mandate to

implement policy promises.

Motor Voter Act: this legislation requires states to let people register to vote at the

same time they apply for a driver's license.

Policy voting: occurs when people base their choices on how close a candidate's

issues positions are to their own issue preferences.

Political efficacy: the belief that ordinary people can influence government.

Referendum: direct democracy technique that allows citizens to approve or

disapprove some legislative act, bond, issue, or constitutional amendment proposed

by a state legislature.

Retrospective voting: voting theory that suggests that individuals who feel that

they are better off as a result of certain policies are likely to support candidates

who pledge to continue those policies, and those who feel worse off are inclined to

support opposition candidates.

Suffrage: the legal right to vote.

Voter registration: a requirement that citizens register to vote before the election

is held.

 

Recent Developments
in Campaign Finance Regulation

Summary Analysis of Bipartisan Campaign Finance Reform Act Passed by House and Senate and Sent to President

by Trevor Potter and Kirk L. Jowers

The bill would:

  • ban soft money contributions to the national political parties;
  • increase individual hard money contribution limits;
  • leave PAC contribution limits unchanged; and
  • restrict the ability of corporations (including non-profit corporations) and labor unions to run "electioneering" ads featuring the names and/or likenesses of candidates close to an election.

Soft Money Ban: The chief component of the bill is its ban on soft money—the term for donations made to national political party committees (e.g., the Democratic National Committee, Republican National Committee, and the Senatorial and Congressional campaign committees) in amounts and from sources (corporations and unions) not permitted in federal elections. Under current law, parties may raise unlimited amounts of soft money, which they have been using not only for party-building activities such as get-out-the-vote efforts, candidate recruitment, and administrative expenses, but also for candidate-specific broadcast advertising. Under the bill parties will not be able to accept soft money after November 6, 2002, and must dispose of all soft money in their accounts by December 31, 2002.

Hard Money Increases: Hard money refers to funds raised and reported in accordance with federal election laws and regulations. Individuals will no longer be able to give soft money to national party committees. The proposed new limits on hard money contributions by individuals are as follows:

  • Increases from $1,000 to $2,000 per candidate per election;
  • Remains $5,000 per year to a political action committee ("PAC");
  • Increases from $20,000 to $25,000 per national party committee (e.g., Democratic National Committee, Republican National Committee) per year;
  • Increases from $5,000 to $10,000 per state or local party committee per year; and
  • Increases the aggregate limit on individual contributions from $25,000 per year to $95,000 per two-year election cycle, of which only $37,500 may be contributed to candidates over the two years. The two-year election cycle starts on January 1 of odd-numbered years and extends to December 31 of even-numbered years.

The limits on PAC contributions to candidates and parties remain unchanged and are not indexed for inflation ($5,000 per candidate per election; $5,000 per outside PAC per year; $15,000 per national party committee per year; and $5,000 per state or local party committee per year). There are no annual aggregate limits on PACs.

Restrictions on Electioneering Communications: The bill prohibits corporations, trade associations, and labor organizations from financing "electioneering communications" within 60 days of a general election and 30 days of a primary election using "treasury money." An electioneering communication is one that refers to a clearly identified federal candidate and is targeted to the candidate's state or district. (A corporation's, trade association's or union's PAC may still run or finance such ads because its funds are, by definition, hard money). This provision also would require non-corporate or non-union persons or entities that spend in excess of $10,000 on electioneering communications during a calendar year to file disclosure reports listing the person(s) making or controlling the disbursements and the custodian of the records, all contributors who gave more than $1,000 to finance the communications, and those to whom disbursements of more than $200 have been made.

Coordination: The bill requires the FEC to issue new regulations that will ultimately determine the reach of the prohibition on corporations and unions coordinating campaign activities with federal candidates.

Impact: The bill's most predictable impact on the campaign finance world will be to enhance the relative influence of corporations, trade associations, and other organizations with large hard-money PACs, while diminishing the influence of entities that have relied primarily or solely on large soft-money contributions. It also should greatly mitigate the pressure many corporations and wealthy individuals feel to make large donations to the political parties in response to requests from Members of Congress and Executive Branch officials. However, pressure for smaller donations of hard dollars will increase in light of the higher individual contribution limits, especially in Washington.

 

Bipartisan Campaign Refom Act of 2002
Click Here to veiw the text of the law

Supreme Court Ruling in Campaign Finance Case Will
Help Halt Erosion of Democracy
Read About The Court's Landmark Decision

The Bipartisan Campaign Reform Act of 2002 (BCRA) was signed by the President and enacted on March 27, 2002. BCRA capped a seven-year effort by its congressional sponsors to change federal campaign law and marked the most significant amendment to the Federal Election Campaign Act (FECA) in more than a quarter century. The Senate version of the final bill, S. 27, principally sponsored by John McCain, Republican senator from Arizona, and Russell Feingold, Democratic senator from Wisconsin, initially passed the Senate on April 2, 2001, and was submitted to the House for consideration. The House version, H.R. 2356, principally sponsored by Christopher Shays, Republican representative from Connecticut, and Martin Meehan, Democratic representative from Massachusetts, passed the House on February 14, 2002. On March 20, 2002, the Senate approved the House version by a 60-40 vote in order to avoid a conference committee that would have been composed by many of the leading opponents of the bill. A series of technical amendments (H.Con.Res. 361) were approved by the House later that day, and subsequently ratified by the Senate on March 22, sending the final bill to the President.

Pillars of BCRA

Among its myriad of components, there are two key pillars of the Bipartisan Campaign Reform Act that have fundamentally transformed campaign finance law. First, the Act prohibits raising and spending "soft money" by federal officeholders and candidates and by the national parties, and severely restricts the use of soft money by state and local parties in relation to federal election activities. Second, the Act redefines what constitutes a campaign advertisement, subject to the disclosure requirements and contribution limits and contribution source restrictions of federal law.

Soft Money. In federal elections, "soft money" is defined as funds that are otherwise prohibited by law for use in campaign activity: funds that come from individuals in excess of the contribution limits or funds that come from corporate or union treasuries. Due to an exemption in the 1979 Amendments to the Federal Election Campaign Act, state and local parties were allowed to spend soft money on grassroots organizing and voter mobilization activities that impacted state as well as federal elections. Subsequent regulations by the Federal Elections Commission (FEC) expanded the soft money exemption, allowing the national parties also to raise and spend soft money for party-building and voter-mobilization activities. In 1988, the FEC even permitted the national parties to use soft money to pay for partisan television advertisements that benefited both state and federal candidates, so long as the soft money was used to pay for the non-federal share of the costs.

The parties had initially been slow to take advantage of this new source of revenue – until the 1996 reelection campaign of President Bill Clinton. In that election, the Democratic party realized the soft money exemption allowed the national party to raise unlimited amounts of soft money and then transfer the funds to state parties. State Democratic parties, in turn, could spend the soft money on non-federal election activity, including television and radio advertisements, that directly benefited the Clinton campaign.

Both parties promptly turned their attention to soft money. In the 2000 election cycle, national and congressional party committees broke all previous records in soft money fundraising. National Republican party committees raised $249.9 million in soft money and spent $252.8 million in soft money, while national Democratic party committees raised $245.2 million in soft money and spent $244.8 million (see Figure 1). More than half of this soft money was transferred to state parties and used to pay for television advertisements. Overall, 77% of party-sponsored television commercials relating to federal elections in the 2000 election were paid for by state parties. The national party committees and federal congressional committees combined purchased about 23% of the party airwaves that addressed federal elections. Not surprisingly, most of this state party spending activity took place in the nation’s most competitive states in the presidential election: Florida, Pennsylvania, California, Michigan, Washington, and Ohio[For further discussion of soft money, click here]

BCRA sharply curtailed the role of soft money in federal elections. Most of the provisions of the new campaign finance law went into effect on November 6, 2002. Federal officeholders and candidates and the national parties are now prohibited from raising or spending soft money in most instances. As part of a congressional compromise, however, entities may contribute up to $10,000 in soft money (known as Levin funds) to each state and local party organization, if permitted by state law, that may be spent for voter mobilization activity in federal elections. Additionally, the Federal Election Commission has promulgated a series of regulations to loosen the soft money ban somewhat, much to the consternation of the congressional sponsors who have filed a lawsuit in response (Shays v. FEC).

Electioneering Communications. Although the Federal Election Campaign Act regulates expenditures in connection with federal elections, subsequent court rulings have narrowly defined what constitutes a "campaign advertisement" subject to the regulations. In a footnote to the 1976 landmark decision, Buckley v. Valeo, the U.S. Supreme Court drew what is facetiously known as the "magic words" standard. According to this standard, a political communication is subject to regulation if it expressly advocates the election or defeat of a candidate by using such words as "vote for," "elect," or "vote against." If such words of express advocacy are not used in the political communication, it is then deemed an "issue ad" rather than a campaign ad, beyond the scope of federal campaign regulations. The court recognized that all candidate advertisements, whether or not they use the magic words, are defined as campaign ads.

A series of academic studies in the 1996, 1998 and 2000 elections documented that very few political advertisements, even those sponsored by candidates, employ any of the magic words of express advocacy. In the 2000 elections, for example, 2% of television ads sponsored by political parties and independent groups used the magic words; only 10% of candidate ads used the magic words. [For further discussion of "issue advocacy," click here]

Yet, the bulk of political "issue ads" are nevertheless seen as promoting the election or defeat of specific candidates. For example, the following television ad aired in key states during the hotly contested Republican presidential primary race between George W. Bush, then-Governor of Texas, and Senator John McCain:

"Last year, John McCain voted against solar and renewable energy. That means more use of coal-burning plants that pollute our air. Ohio Republicans care about clean air. So does Governor Bush. He led one of the first states in America to clamp down on old coal-burning electric power plants. Bush’s clean air laws will reduce air pollution more than a quarter million tons a year. That’s like taking 5 million cars off the road. Governor Bush, leading, for each day dawns brighter."

Since the advertisement did not expressly advocate the election of George Bush or the defeat of John McCain, it was classified as an issue ad not subject to the disclosure requirements or contribution and source limitations of federal campaign laws.

The Bipartisan Campaign Reform Act provides a new definition of campaign ad versus issue ad. The law retains the magic words standard as well as the concept that any advertisement sponsored by a candidate is a campaign ad. But it also imposes a "bright-line standard" in which any broadcast advertisement that depicts a candidate within 30 days of a primary election or 60 days of a general election, and is targeted to the voting constituency of that candidate, constitutes an electioneering communication, subject to federal campaign laws.

Legislative History

Passage of the Bipartisan Campaign Reform Act did not come easily or quickly. The original version of BCRA, more commonly known as the McCain-Feingold bill, was introduced as S. 1219 in the 104th Congress on September 7, 1995. The original bill provided more than restrictions on soft money. It also called for voluntary spending ceilings in congressional races, free broadcast time and reduced rate mailing privileges to candidates who abided by the spending ceilings, and limits on self-financing of candidate campaigns. Each session of Congress thereafter, Senators McCain and Feingold introduced a modified version of their bipartisan campaign reform legislation.

The McCain-Feingold bill died short of a cloture vote in the Senate of the 104th Congress. In the following session, the House succeeded in passing its companion bill, H.R. 2183, better known as the Shays-Meehan bill. Senate sponsors in the 105th Congress, however, failed three times to break a filibuster on the Senate version. In the 106th Congress, the House again passed the Shays-Meehan bill (H.R. 417), only to be thwarted by another filibuster in the Senate. Even a scaled down Senate bill (S. 1593) in that same session providing only a ban on soft money was stopped by a filibuster.

Finally, in the 107th Congress, the latest McCain-Feingold bill (S. 27) survived an onslaught of 38 potentially crippling amendments which were disposed of with 26 roll call votes. On April 2, 2001, the Senate approved the McCain-Feingold bill by a vote of 59-41. As passed, the bill contained 22 amendments offered on the floor; 16 additional amendments were rejected.

The momentum for campaign reform now moved into the House. The House Administration Committee initiated a series of hearings on campaign finance reform from march through May of 2002. The committee favorably reported to the House a substantially weaker version of the Senate bill, known as the Ney-Wynn bill (H.R. 2360), and unfavorably reported the companion bill, H.R. 2356, sponsored by Representatives Shays and Meehan. On July 12, the House rejected by 203-228 a proposed rule to consider the campaign finance issue, leaving both bills suspended.

Beginning on July 19, 2001, a group of Blue Dog Democrats began circulation of a discharge petition ordering the House leadership to resume debate on the campaign finance bills. The petition needed 218 signatures to force a floor vote. On January 24, 2002, campaign finance reform proponents secured the last four signatures needed on the discharge petition. The House approved H.R. 2356 on February 7, 2002, on a 240-189 vote. The Senate approved an identical bill on March 22 in order to avoid a conference committee, which was signed into law by the President on March 27.

Court Challenges

Within a month of passage of the new campaign finance law, more than 80 plaintiffs—ranging from Sen. Mitch McConnell (R-KY) to the AFL-CIO to the Republican party—filed 11 different lawsuits challenging every provision of the Act. The U.S. Department of Justice and the Federal Election Commission (FEC) were the lead defendants in the suits, supported in their defense of BCRA by the principal congressional sponsors of the law, who intervened in the case. All the lawsuits were consolidated into one case, McConnell v. FEC.

After a mixed ruling by a lower three-judge federal panel last May, which was suspended on appeal, the Supreme Court took the case on a fast-track review schedule. The court even cut short its summer vacation in order to hear oral arguments, which took an extraordinarily long four hours. But the court did not dawdle in issuing a timely ruling – and the court did not leave much ambiguity in its thinking. In a 5-to-4 decision, the majority of the court ruled:

“[T]he statute’s two principal, complementary features – Congress’ effort to plug the soft money loophole and its regulation of electioneering communications – must be upheld in the main.”

The majority opinion, written by Justices Stevens and O’Connor, upheld the two key provisions of the campaign finance law: the ban on soft money in federal elections, and the regulation of campaign advertisements disguised as “issue ads.” The court did not stop there – nearly every element of BCRA in particular, and campaign finance regulation in general, was supported in the ruling.

Specifically, the court upheld:

  • The ban on national parties and officeholders raising and spending “soft money” – the unlimited contributions to parties from corporations, unions and wealthy individuals.
  • The limit on state parties spending soft money that affects federal elections.
  • The new definition of campaign advertisements subject to campaign finance regulation and disclosure, as any broadcast ad aired immediately before an election that depicts a federal candidate and targets that candidate’s constituency (known as “electioneering communications”). Such ads are now covered under campaign finance limits and disclosure requirements if they are aired 60 days before a general election or 30 days before a primary election.
  • The requirement that special interest groups use only regulated “hard money” to pay for electioneering communications and disclose where that money came from. Hard money consists of contributions from individuals or political action committees (PACs), subject to contribution limits and disclosure requirements.
  • The mandate that broadcast stations compile a public record of political ads and who paid for them.

The court invalidated only two provisions of the law: the ban on campaign contributions from minors, and the requirement that parties choose between making either independent expenditures or coordinated expenditures on behalf of candidates. The court affirmed most other aspects of campaign finance regulation and disclosure, and even admonished the Federal Election Commission for letting money in politics get so out of hand. FEC regulations, noted the court, created the problem of soft money. In the words of the Justices, “the FEC regulations permitted more than Congress, in enacting FECA (the original campaign finance law), had ever intended.”

Just as important, the court rejected out-of-hand the very narrow justification for campaign finance laws used by opponents of regulating money in politics – that campaign finance regulations are only justifiable to curtail the type of corruption that causes a change in legislative votes. The court expounded upon the fact that soft money leads not only to a possible change in legislative votes, but also to “manipulations of the legislative calendar, leading to Congress' failure to enact, among other things generic drug legislation, tort reform, and tobacco legislation.” To claim that such legislative scheduling actions do not change legislative outcomes, says the court, “surely misunderstands the legislative process.” As such, campaign finance regulation need not be based on such a narrow interpretation of corruption.

The court strongly affirmed the right of the public to know who is paying for campaign advertisements and with how much money. There were eight votes – all except Justice Thomas – for applying the basic disclosure requirements even as to the broader definition of “electioneering communications.”

While this ruling affects all federal elections, it will have a tremendous impact on next year’s presidential contest. The parties will no longer have access to hundreds of millions of dollars of corporate and union money that they have used in prior presidential elections to saturate the airwaves with largely negative campaign commercials. Similarly, there will be no more six-figure contributions from wealthy special interests to buy favors from the White House – not even a Lincoln bedroom sleepover.

Make no mistake about it: we have entered a new era of campaign finance reform. After years of retreating under increasingly lax rules of campaign finance regulations, the U.S. Supreme Court has handed the reform community the means to make sure that some campaign finance laws no longer are just loopholes.

Candidates and officeholders, parties and special interest groups, and even the FEC, must now recognize that the Bipartisan Campaign Reform Act, which effectively closes many of those loopholes, is the law of the land.

Read a detailed history of the litigation of BCRA

Read the Statement of Public Citizen President Joan Claybrook and Alan B. Morrison,* Founder of the Public Citizen Litigation Group

 Review the Ruling: McConnell v. FEC, No. 02-1674  (Dec. 10, 2003)

 

 

Supreme Court allows issue ads in federal elections

June 25, 2007

Story Highlights

• 5-4 ruling upholds appeals court case
• Issue ads were banned under 2002 McCain-Feingold law
• Chief Justice Roberts says court gives "benefit of doubt" to free speech

WASHINGTON (CNN) -- The Supreme Court on Monday swept aside part of a campaign finance law dealing with "issue ads."

The ruling could mean a greater role in the 2008 presidential campaign for advocacy groups, corporations and labor unions, which air the commercials in the weeks before voters go to the polls.

In a 5-4 ruling upholding an appeals court decision, the high court's majority concluded the specific guidelines for the issue ads -- aired mainly on television -- were overly restrictive.

Under the current law, such ads can be banned 60 days before a general election, and 30 days before a primary. That provision was a key part of the 2002 McCain-Feingold bill setting strict limits on political spending and the message behind it.

"When it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban -- the issue we do have to decide -- we give the benefit of the doubt to speech, not censorship," Chief Justice John Roberts wrote for the majority. (Read the opinionexternal link)

The decision was a defeat for the Bush administration and congressional supporters of the campaign reform legislation.

Court conservatives split

But the court's conservative majority was itself split on the issue. Roberts and Justice Samuel Alito took a narrow approach, saying only the issue ads in question were not subject to restrictions based on the high court's 2003 ruling upholding the broader McCain-Feingold law. Three other conservatives -- Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas -- said they supported throwing out entirely the issue ad restriction contained in McCain-Feingold.

The overall effect, however, is that such ads will almost certainly play a role in next year's federal elections, in the critical days before voters go to the polls.

In dissent, Justice David Souter warned that problems lie ahead when these ads become more prevalent.

"The understanding of voters and the Congress that this kind of corporate and union spending seriously jeopardizes the integrity of democratic government will remain," he said. "The facts are too powerful to ignore, and further efforts at campaign finance reform will come. It is only the legal landscape that now is altered."

Souter took the unusual step of reading portions of the dissent in an oral presentation from the bench. He was supported by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.

Ads widely used before 2002

Until they were banned in 2002, these issue ads were widely used to promote particular causes, such as environmental protection or tax reform, but the law specifically said they could not endorse, oppose -- or even mention by name -- any particular federal candidate.

The restrictions apply only to money from a corporation or union's "general treasury" funds.

The ads often had the effect of either helping or hurting at-risk candidates fighting for their political lives.

"These ads did not have some random distribution," Solicitor General of the United States Paul Clement said in defense of the restrictions during oral arguments in April. "These ads were were really concentrated in close districts."

But an anti-abortion group claimed they were prevented from airing what they call "grass-roots lobbying ads" aimed at focusing attention on a particular issue, not a candidate or office holder.

Corporate groups -- including special interest non-profits -- said preventing their messages from airing close to elections was an unconstitutional restriction of their First Amendment rights.

The federal government countered that the ads can influence an election, and argued such restrictions are necessary because their big-money corporate sponsors had always found legal ways to sidestep earlier laws on issue ads.

Wisconsin Right to Life (WRTL) had filed a lawsuit in 2004, demanding the right to air ads that urged viewers to contact their Democratic U.S. senators -- Herb Kohl and Russ Feingold -- and "tell them to oppose the filibuster" of President Bush's conservative judicial nominees. Feingold was running for re-election in 2004, and both men serve on the Senate Judiciary Committee that confirms federal judges.

The ads mentioned the senators by name, but did not provide their contact numbers. Instead, the ads showed a link to a Web site on which WRTL posted critical information about Feingold.

He was not participating in the latest appeal, but the bill's co-sponsor, Sen. John McCain, R-Arizona, is a party to the case.

"It is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election," McCain said in a statement.

Effect on 2008 vote expected

Political and legal experts say the ruling could greatly influence next year's elections.

"McCain-Feingold clearly has an impact on every candidate and everyone that raises or spends campaign dollars," said Edward Lazarus, author of "Closed Chambers," an inside look at the Supreme Court. "And the court has mediated that line between trying to allow Congress to protect against electoral corruption, but at the same time, protect the right of expression of corporations and individuals."

The high court, in a series of rulings in recent years, has in general upheld the constitutionality of federal campaign finance reform laws. But a federal court last month allowed the Wisconsin group's lawsuit to go forward. They are supported by a large number of groups, including the ACLU, the National Rifle Association, the American Federation of Labor and the U.S. Chamber of Commerce.

Money is central to this case, specifically the source used to pay for issue ads. Federal law prevents corporate general funds from being used, but the ads airing close to an election could still be paid for by a group's political action committee, or PAC. Those groups say such PAC revenue is generally limited compared to general treasury money, and subject to great restriction, such as the disclosure of donor names and amounts.

The justices in 2003 upheld the overall legality of McCain-Feingold. Then-Justice Sandra Day O'Connor wrote an opinion upholding Congress' justification and power to enact sweeping campaign finance reform. But Alito has since replaced her on the bench, and signed onto a more restrictive view of the law's power. He and Roberts, by having the controlling opinion, proved to be the swing vote in these appeals. Neither was on the bench when the high court first considered the issue in 2003.

The consolidated cases are FEC [Federal Election Commission] v. Wisconsin Right to Life (06-969) and McCain v. Wisconsin Right to Life (06-970).

 

 

 

 

 

 

 

 

 

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