Combative questioning last week by Supreme Court swing votes on campaign-finance reform raised doubts not only on whether new restrictions on political ads would survive but on whether longstanding restrictions on political campaigns could be weakened in the bargain.
Under review is the fate of a campaign-finance law sponsored by Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) and Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.), which bans national political parities from raising "soft money"—contributions not bound by federal donation limits—and prohibits state and local parties from using their soft money in federal elections. In addition, corporations and labor unions would be barred from buying political ads mentioning a federal candidate within the 30 days of a primary and 60 days of a general election. Such campaigns mean big bucks for broadcasting coffers.
"It's very dangerous to draw a lot of inferences in this context," said Media Access Project President Andrew Schwartzman, who is pushing for strengthening of the laws. "This case is so complicated I have no confidence in any kind of projection I could make."
Based on past rulings, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer are believed to support upholding the law. Likewise, conservatives Antonin Scalia and Clarence Thomas are expected to side with striking it down. That leaves the swing votes with Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Anthony Kennedy.
O'Connor and Kennedy have backed campaign regulation before. She was largely silent during oral argument, but he asked several pointed questions of defenders of the new law.
Rehnquist, in particular, seemed to be struggling to balance his past support for restrictions on speech protections for corporate or interest-group political ads. "The whole purpose of the First Amendment is to allow people who perhaps don't have much in the way of public opinion to try to change public opinion," he said.
He also questioned whether the law was only trying to eliminate the corrupting influence of money or seeking to reduce the fundraising burdens on lawmakers. Prior cases, he said, don't give Congress power to "willy-nilly regulate any sort of contributions in connection with an election campaign."
Other justices challenged lawyers arguing against finance reform on grounds that their far-reaching attacks, carried to their logical end, would call into question other finance regulations in place for decades. "If you do not accept what Congress has done here, you are doing a complete end run around prior law," Souter told Kenneth Starr, attorney for Sen. Mitch McConnell (R-Ky.), lead plaintiff seeking the law's elimination.
Souter's rhetorical question was echoed by other justices, although Scalia indicated that he might support doing away with longstanding campaign-donation limits, such as caps on individuals' gifts to candidates. "Just because it's been around for 30 years doesn't convince me it's valid," Scalia said.
The restriction on corporate and union ads came under particular attack. Souter suggested Congress had set up a "false dichotomy" by forbidding ads that mention candidate names, saying voters will be able to figure out which candidates support the ad's position. "This is a silly distinction," added Kennedy.
The justices also questioned whether the soft-money ban will accomplish anything beyond weakening political parties and enriching interest groups. "The power and the money will shift to those groups," said Breyer.
Quizzed on criticism that the new law's ban on issue ads also would overwhelmingly help incumbents, U.S. Solicitor General Ted Olson, defending the law, noted that more than 97% of incumbents get reelected in federal elections.
"Almost eight years to the day after the introduction of the original McCain-Feingold bill," said McCain, "we are hopeful and confident that the court will uphold the law, and we look forward to the court's decision."
The court has not said when it will rule but is expediting the case for the 2004 elections.