U.S. Supreme Court ruling on campaign finance reform
December 11, 2003
The U.S. Supreme Court’s ruling that the McCain-Feingold campaign finance reform law is constitutional is an historic victory for the cause of political reform. The ruling not only significantly aids efforts to rescue democracy from moneyed special interests intent on corrupting the political process, but also represents a major step toward giving the First Amendment back to average citizens.
In its ruling, the high court recognized that democracy cannot survive when money - and not people - is sovereign. The five-member majority also recognized that the First Amendment right to free speech means little to average citizens in a system where political speech is anything but free. Under the current corrupt campaign finance system, speech has become so grotesquely expensive that all but a wealthy few have been priced out of the marketplace of ideas that is so central to a democratic form of government.
With this ruling, the highest court in the land has taken steps to arrest the commercialization of the First Amendment and has given considerable comfort to those who rightly worry that political speech is being rapidly transformed from a right that belongs to everyone to a privilege that must be purchased.
The most important way the court struck a blow against rampant government corruption was to close the issue ad loophole that has allowed special interests to skirt disclosure laws and other campaign finance regulations and thereby flood election campaigns with contraband funds.
The court ruled that the so-called "magic words" test contrived by the court in 1976 - allowing special interests to circumvent the law merely by avoiding the use of words like "vote for" or "vote against" in their campaign ads - is "functionally meaningless." In coming to this conclusion, the court tossed this senseless semantic distinction in the trash bin of history where it belongs. The loophole that devoured once-effective federal campaign finance laws is no more.
The issue ad loophole also has savaged the democratic process at the state level. It has rendered impotent one of the great reforms of Fighting Bob La Follette’s era - the state’s ban on corporate campaign contributions. Ever since issue ads appeared on the scene in Wisconsin in 1996, a flood of corporate money has poured into state election campaigns, fueling a political arms race and corrupting the legislative process.
In upholding the McCain-Feingold law, the Supreme Court not only has affirmed the constitutionality of banning unlimited soft money donations and regulating phony issue ads at the federal level, but has opened the door to reform at the state level.
State reform legislation like Senate Bill 12 - the Ellis-Erpenbach bill - contains language identical to that in McCain-Feingold requiring full disclosure of issue ad activity. A number of legislators have stated publicly on numerous occasions that Ellis-Erpenbach is unconstitutional because of its provisions relating to issue ad regulation. The nation’s highest court said loud and clear yesterday these lawmakers were wrong.
The Senate majority leader promised the better part of a year ago to bring Senate Bill 12 to the floor of the Senate for debate, but in more recent months has insisted that the Senate should not act until after the Supreme Court ruled on the McCain-Feingold law. She need wait no longer to make good on her promise.
The state Elections Board needn’t wait for the Legislature to act in order to adopt rules giving the McCain-Feingold approach to issue ad regulation the full force of law at the state level and thus giving all participants in the fast-approaching 2004 elections clear direction on how upcoming state-level campaigns must be conducted.
Remember that in a 1999 ruling, the Wisconsin Supreme Court ruled in favor of Wisconsin Manufacturers and Commerce on the narrow question of whether the Elections Board had regulations in place at the time requiring disclosure of issue ad activity. But while the state Supreme Court said the board could not regulate WMC’s activity without rules in place, the court clearly said the state could regulate issue ads and invited either the Legislature or the Elections Board to craft such regulations. Neither did so, presumably for fear of acting without clear direction on the question from the U.S. Supreme Court.
That clarity was provided yesterday by the nation’s high court, so just as the Legislature now has a green light to act on the Ellis-Erpenbach bill the Elections Board has a green light to immediately replace its current rules enshrining the discredited magic words test with new rules based on the court-approved language in McCain-Feingold.
The U.S. Supreme Court could have signed democracy’s death certificate if it had ruled that special interest money must be allowed to flow unimpeded no matter the consequences. But the court recognized that unlimited campaign contributions and dishonest stealth campaigns bankrolled by corporate and union treasuries are corrupting our government and stealing our democracy. In doing so, the court has made the federal campaign finance system better and has taken away a prime excuse for stonewalling reform legislation at the state level.
The defenders of the corrupt status quo have run out of excuses.