BY KATIE BIBER
Monday, the Supreme Court reviewed a law that is poised to rewrite American politics. If democracy carries the day, the sprawling beast known as the Bipartisan Campaign Reform Act may finally be taken to the chopping block. By most accounts, some parts of BCRA are so indefensible that a 1L Ames team could win the plaintiffs’ case before the Supreme Court. But that is not the worst of it.
The “reformers” proclaimed that BCRA would remove money from politics, clean up the system and return government to the people. But money cannot be shut off like water from a leaky faucet. Dollars will always be spent, and if we plug funding to visible, responsible organizations, money will flow to invisible, less-responsible ones. This is not merely a theoretical concern – already countless organizations have sprung up to replace the so-called “soft money” functions of American political parties. Unlike political parties, these organizations are scarcely regulated and wholly opaque.
BCRA’s penchant for unregulated shadow groups is not its only functional flaw. It is brimming with eye-opening absurdities. Take, for instance, the “Millionaire’s Provision.” This tentacle of BCRA significantly raises the allowable contribution limits for politicians running against independently wealthy candidates. If a Senate hopeful chooses to spend a large amount of her own money in a race, her opponent will be able to raise funds in increments as much as six times the standard limit. Coincidentally, this means that an entrenched congressional incumbent being challenged by a millionaire will find it easier to defend himself.
BCRA also creates the infamous “30-60 Day Rule,” which has been one of the main battlegrounds for the current litigation. Thirty days before a primary or sixty days before a general election, corporate or labor union groups may not broadcast a targeted “electioneering communication” that refers to any federal candidate by name. In other words, the law creates an absolute ban on advertising that dares to mention a federal candidate up for reelection. Ostensibly, it also means that the AFL-CIO could not create a television advertisement citing the “Senator Jones OSHA Dismantling Act” during an election season. Nor could certain organizations create a commercial decrying the idiocy of BCRA’s precursor, McCain-Feingold, if one of its two namesakes were running for another term. The writers of BCRA were smart enough to realize that this provision is flatly unconstitutional. This did not deter them. They instead built a fallback rule to take effect when the current restrictions are struck down. The secondary provision imposes a year-round ban on any broadcast that “promotes or supports” or “attacks or opposes” a candidate for office.
BCRA also creates rigid rules for “coordination” between candidates and their political parties. It is now a crime for the two to collaborate on certain matters, from advertising to getting out the vote. Putting aside the constitutional problems with this provision, it erects a bizarre wall between entities sharing a natural partnership. It also hands even more power to unregulated shadow groups.
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At the heart of the Bipartisan Campaign Reform Act is one cold reality: As is often the case when it comes to incumbents writing the rules of their own game, BCRA will make it much easier for entrenched politicians to keep their jobs. The law handcuffs political parties, which often coordinate and drive the effort to kick ineffective incumbents out of office. It prevents outside groups from offering an appraisal of a politician’s job performance, which might present information that voters would not otherwise hear. It allows incumbents to bypass typical contribution limits when they are faced with wealthy challengers. Furthermore, BCRA creates a web of rules that can only be understood by candidates with the money to hire well-read attorneys.
The platitudes usually offered by BCRA supporters simply cannot make up for the law’s serious constitutional and functional flaws. This is why opponents have lined up on both sides of the political spectrum: the Republican National Committee, the Democratic Party of California, the National Rifle Association, the ACLU, National Right to Life and the AFL-CIO have joined together to challenge the law. Their unanimity should be a sign to the rest of us.
Katie Biber’s column appears biweekly, although her next column will appear next week.