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NCC EVENT
COURT DECISION ON SOFT MONEY BAN GETS CRITIQUED AT SYMPOSIUM

By Jon Hurdle

The Clock
U.S. SUPREME COURT

Experts from around the country came to Penn Law in May to discuss the legal controversy surrounding campaign finance reform. Assistant Professor Nathaniel Persily organized the symposium in response to the recently released convoluted 1,638-page decision issued by a three-judge district court hearing challenges to the Bipartisan Campaign Reform Act, popularly known as the McCain-Feingold campaign finance law.

The law bans so-called “soft money”: large, previously unregulated contributions to political parties by corporations, unions and wealthy individuals. It also forbids corporations and unions from engaging in “electioneering communications,” such as television commercials referring to candidates within 60 days of a federal election.

At the symposium, co-sponsored by Penn Law and the National Constitution Center, participants attempted to explain and critique the decision, which upheld the ban on solicitation of soft money by federal officials and modified the ban on electioneering communications. Plaintiffs, led by Kentucky Senator Mitch McConnell, had argued that the law abridged the First Amendment rights of parties and other entities who wished to make political contributions and expenditures.

Trevor Potter, chairman of the Campaign and Media Legal Center, and former chairman of the Federal Election Commission, expressed the view at the symposium that the court concluded that politicians’ acceptance or solicitation of corporate and union money constitutes corruption. A majority of the court concluded that in accepting soft money there is not only the appearance of corruption but also actual evidence of it, Potter said. “There is proof that access to federal officeholders is sold to the highest bidder and that members of Congress sometimes vote for donors’ wishes. These are not exactly dramatic findings but they drive home the reasons that this Act was passed.”

On the other hand, said Yale University’s Jonathan Krasno, an expert witness for the FEC, the two major parties are unlikely to be irreparably harmed if the Supreme Court upholds the ban on soft money for party-building activities. “The parties’ efforts to boost (voter) turnout rates have been largely ineffective,” he said.

Shortly after the symposium, the federal district court stayed its own decision, allowing McCain-Feingold to stand until the Supreme Court issues the final word on the constitutionality of the Act. The Court has agreed to hear the case in a special session in September.

Persily expects the Supreme Court to strike down the electioneering provisions of the Act while upholding much of the Act’s ban on soft money. However, personnel changes on the Court, he was quick to add, may lead it to strike down the entire law.

 
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