• Take Action!



• Watchdog Blog



• Clean Up Washington



• White House for Sale



• Open Government



• Consumer and Civil Justice



• Election Reform



• Key Reports



• Congressional Voting Records



• The Archives



• Link to Us

Why the New Campaign Finance Reform Law Is Constitutional

Critics from both the right and left have filed federal lawsuits alleging that the McCain-Feingold/Shays-Meehan Bipartisan Campaign Reform law (P.L. 107-155) is unconstitutional. They make two principal arguments: the law’s bans or severe restrictions on unlimited soft money contributions to political parties and federal politicians and its ban on corporate and union financing of pre-election TV and radio "issue ads" referring to candidates violate the First Amendment’s guarantee of freedom of speech.

Public Citizen believes that this legislation rests on firm constitutional ground and will be upheld by the U.S. Supreme Court. Towards this end, Public Citizen’s lawyers are working with a team of distinguished lawyers and scholars to defend the new law in court.

1. The ban on national party and candidate/officeholder soft money and the severe restriction on state party soft money used for federal election activities are constitutional.

Soft money refers to unlimited corporate, union and individual contributions to political parties, candidates and officeholders. The new law bans all such contributions at the national level, and places severe restrictions on state party soft money for federal elections. This legislation is perfectly consistent with the Constitution:

• In its landmark Buckley v. Valeo campaign finance case (1976), the Supreme Court said it was constitutional to limit campaign contributions in order to prevent corruption or the appearance of corruption. National party soft money contributions are used to evade contribution limits specified in the Federal Election Campaign Act. While the practice is justified in terms of "party-building," soft money is actually used to support federal candidates. We expect that the Court will uphold these new provisions, to ensure that contribution limits are not skirted.

• The overwhelming majority of soft money comes from corporate and union treasuries. Yet corporations and labor unions have been banned by law from contributing money in connection with federal elections since 1907 and 1947 respectively, and the Supreme Court has upheld these bans.

• The severe restrictions on state party soft money used for federal elections are also necessary to prevent national parties from evading the soft money ban. Without these restrictions the national parties could simply rechannel the soft money to state parties. Federal campaign law has long regulated contributions for joint national-state party activities in federal elections, and this has never been challenged by the Supreme Court.

2. The ban on corporate and union financing of TV or radio ads referring to clearly identified candidates that are aired within 60 days of a general election and 30 days of a primary is also constitutional.

The ads in question are so-called "sham" issue ads, which pretend to discuss issues, but actually identify particular candidates and promote or oppose those candidates without using words like "vote for" or "vote against" that would cue in the ban on corporate and union financing in federal election law. Like soft money, sham issue ads are an attempt to evade legal and constitutional limits on contributions:

• As previously noted, the Court has long upheld federal bans on corporate and union campaign contributions to candidates and parties.

• It is clear that corporate and union financed sham issue ads are today a leading form of campaign spending. Detailed studies by the Brennan Center for Justice at New York University and Brigham Young University researchers have established that virtually all of the "issue ads" run in the pre-election periods established in the new law have the intent or effect of promoting or opposing candidates. In deciding on the constitutionality of new regulations, the Supreme Court will necessarily take into account the use of new advertising techniques to send messages the Court has previously held may be regulated, and the fact that issue ads are used routinely by corporations and unions to evade longstanding prohibitions against their electioneering.

• The likelihood that the Court would sustain the new law’s provisions is heightened by its limited coverage (broadcast, satellite and cable communications specifically mentioning candidates) and the time-frame (60 days before a general election; 30 days before a primary). These are restricted in order to curb interference with pure issue advocacy.

• The law only prohibits corporate and union treasury spending. It does not preclude PACs organized by corporate employees and union members from pooling their support to engage in electoral activity.

April 5, 2002

more resources

Because Public Citizen does not accept funds from corporations, professional associations or government agencies, we can remain independent and follow the truth wherever it may lead. But that means we depend on the generosity of concerned citizens like you for the resources to fight on behalf of the public interest. If you would like to help us in our fight, click here.