From the Washington Post

For Court, Campaign Money Is a Moving Target
By Dan Balz
Washington Post Staff Writer
Tuesday, September 9, 2003;

The Supreme Court waded into one of the most fundamental and convoluted areas of American politics yesterday, the financing of elections. After four extraordinary hours of oral argument, the question before the country, if not the court itself, is whether the rulemakers can ever get ahead of the practitioners.
Congress has grappled with how to regulate money and politics for a century. The law now before the court, the Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold after its principal Senate sponsors, represents the first significant rewriting of the law in a quarter-century. It is a legal attempt to contain what has been a moving target during that time.
The issues facing the court are large and complicated, and they represent conflicting principles: curbing the influence of money in campaigns; maintaining public confidence in the political system; protecting the right of free speech; and deciding what role the political parties should play in the life of the country in relation to special or single-interest groups.
But the history of campaign finance was summed up during yesterday's morning session by Solicitor General Theodore B. Olson, who, in arguing in behalf of the law, suggested that it is by no means a full or final answer to the problem. The pattern, he said, is "legislation, followed by exploitation of loopholes, followed by legislation."
With the new law, Congress sought to plug two large loopholes. One involves the growing reliance by the political parties through the 1990s on large, non-federally regulated contributions of $1 million or more from corporations, labor unions and wealthy individuals. In the past two decades, the amount of soft money raised and spent by the national parties rose from $19 million to $498 million, or about 42 percent of national party spending.
The second involves the proliferation of what have euphemistically been called "issue ads," television commercials financed by the parties or by special-interest groups. These ads are technically not supposed to advocate election or defeat of candidates for federal office but are often unmistakable in their effort to do so.
Such practices, said Deputy Solicitor General Paul D. Clement, have a "corrosive and distorting effect" on the political process. Seth Waxman, a former solicitor general in the Clinton administration who was representing the law's congressional sponsors, said the public was "justifiably cynical" about the $500 million in soft money raised and spent in the 2000 election, even while acknowledging that it is difficult to draw a straight line between the purchase of access and the outcome of legislative battles in Congress.
That snapshot of the political system is what Congress sought to correct, but the opponents of BCRA argued that the solution is far too broad, violating the First Amendment rights of organizations and political parties to engage in political speech and crippling the power of the national party committees, with the result that money and influence will find new outlets through organizations that are less accountable and less transparent.
"This goes much too far," said Kenneth W. Starr, former Whitewater special prosecutor and solicitor general in the administration of President George H.W. Bush, who argued in behalf of Sen. Mitch McConnell (R-Ky.), the law's leading congressional opponent. "Congress could have calibrated much more carefully."
A three-judge panel of federal judges agreed with that view last May, rolling back parts of the new law in a 1,600-page decision. The Supreme Court must now decide whether that panel was correct, whether the law should be upheld, or whether it will come up with a third interpretation that will create yet another system of financing campaigns.
But can it catch up with what is happening in campaigns? The reality is that, as much as money is despised by the public as a corruption of the political process, it is prized by candidates, national parties and special-interest groups. Throughout the political community, clever lawyers have been finding their way around the provisions of BCRA.
Progressive groups and labor unions already have established a series of entities designed to funnel tens of millions of dollars into voter mobilization and campaign ads. The two parties have given their blessing to independent committees designed to aid candidates for the House and Senate in much the same way that the old law allowed the party committees to do.
As the court grapples with BCRA, President Bush's reelection campaign is effectively wiping out -- legally -- the system of restraints on money inherent in the public financing of presidential primaries that has been in place since the post-Watergate reforms of 1974.
The law limits presidential candidate spending during the primaries to about $45 million this year, if the candidate accepts federal matching funds. But Bush, who eschewed those public funds in 2000, will do so again and instead may raise and spend close to $200 million between now and the Republican National Convention.
Former Vermont governor Howard Dean, tapping a rich vein of small contributions in part through the Internet, is raising money at such a clip that he may find it irresistible to do what Bush is doing. And for this, he likely will be praised by members of his party.