My own experience leads me to different conclusions from Dan's on the efficacy of a modified ban on soft money (it can be raised, but not spent by parties on broadcast ads). That is exectly the system we had until the Clinton/Morris  1996 advertising. By that time, all of the problems with soft money were fully apparent.

Starting in 1988, federal presidential  candidates and their agents were directly involved with raising large soft money donations, with all of the inherent opportinities for corruption. By the mid 1990s the parties had figured out how to use soft money in specific House and Senate campaigns (mailers, GOTV, ground staff). As soon as raising and spending soft money to effect specific races became common, there was pressure on federal officeholders to raise those funds-for their own races (EITHER for state party or federal committee accounts-it made no difference:thus the restrictions on state party soft money activities in BRCA) and for their party's target races.

Thus, the only modification of BCRA which might have worked was BOTH a ban on candidate/officeholder fundraising of soft money, and a ban on its use by any party committee for advertising referring to federal candidates. However, even that only presents an invitation and incentive to evasion-so long as the parties could use any of the soft money to aid specific federal candidates (on the ground) there would be an incentive for candidates and officeholders to evade the solicitation restrictions.

This leads to another problem with any modified soft money ban-it requires enforcement to work, and the FEC has a history on non-existent or ineffectual enforcement in this area (as both the Opinion points out).
Without enforcement, the staus quo would have crept back towards use of party soft money for candidate advertising (a use NO election lawyer thought was legal until the DNC did it in 1996 and the RNC responded in kind, and the FEC then over- ruled its General Counsel's Office and refused to find a violation).

That said. It is clear to me that the parties (especially the Republicans) gambled and lost during Congressional consideration of McCain- Feingold/Shays-Meehan. They banked on defeating the bill procedurally in Congress or in a court challenge, and therefore refused to negotiate. While they now say the Hagel amendment in the Senate was an attempt at a less restrictive alternative,  I can give a hour long description of the loopholes it contained, and it was alsdo seen by both sides as a way to stop the Reform bill rather than a real attempt to compromise. In retrospect, the parties would have been far better off to have offered an approach like the one Dan Lowenstein suggests, but they were too stubborn to do so.
Trevor Potter

 -----Original Message-----
From: 	Lowenstein, Daniel [mailto:lowenstein@LAW.UCLA.EDU]
Sent:	Thu Dec 11 19:42:23 2003
To:	Election-law Listserver (election-law@majordomo.lls.edu)
Subject:	RE: McConnell v. FEC: The big picture

    I agree with Rick and others that the majority is deferential almost to the point of casualness in its application of the First Amendment.  However, probably the most salient fact about the Court's application of the First Amendment in the past thirty years is the compartmentalization of First Amendment doctrine.  The law of campaign finance is different from the law of defamation, which is different from the law of obscenity, which is different from commercial speech, etc.  So the First Amendment consequences of this decision are probably not that great.  If you are a virtual child pornographer, or a defamer, or a nude dancer--to name a few of the examples given by Thomas and Scalia--this decision need not make you tremble.  (Dancing nude this time of year might do it, though.)

    Therefore, I think what drives the result is not so much deference in applying the First Amendment as a remarkable acceptance by the majority of the world view of the reformers.  I believe there is a great deal of merit in that world view, but there is also merit in the opposing view of the deregulators.  That is why, like Rick, I am glad of the outcome on many of the issues, but uncomfortable with the Stevens/O'Connor opinion.

    There is one general respect, however, in which no one on the Court made a move toward (many of) the reformers.  Among academic reformers in the past decade or more, there has been a strong push toward favoring equality rather than corruption as the rationale for campaign finance regulation.  McConnell is grounded entirely on corruption (and the perception of corruption, which I wish the Court would scrap).  True, the Court arguably broadens the conception of corruption toward something closer to conflict of interest (which I think they should do explicitly), but they do not extend or even rely much on the Austin approach, which did push corruption toward equality, for corporations at least.

    Of course, the liberals on the Court were able to reach the results they wanted within the corruption framework, so the decision does not indicate they would be unwilling to move toward equality in a different case.  A good test would be a case involving ballot measures.  I believe no such case has been before the Court since CARC.  It would be interesting to see if the present Court adheres to the spirit of Bellotti and CARC.

    A couple of specific points.  The result that I regret is the upholding of the soft money provisions, especially particularly those affecting state and local parties.  Presumably, given the result on electioneering communications, Congress could limit the ability of parties to use soft money for that purpose.  That, in my opinion, would alleviate the pressure on politicians from large soft money contributions, because I believe that is what they care about the most.  So I don't see any need for a ban on soft money contributions to national parties.

    Still, it is a little hard to feel sorry for the national parties.  They got pretty gross about the way they raised soft money, as Stevens/O'Connor document very well.  Furthermore, national parties can do pretty well raising hard money.  But the factual basis for treating mixed expenditures by state parties as entirely federal seems to me quite weak.  Thomas' argument about anticircumvention layered on anticircumvention has conceptual merit, and empirically it seems to me apt here.  Furthermore, perhaps Marty was right yesterday when he said that the federalism constitutional claim is weak doctrinally.  But the state party provisions seem to me to reflect an (inaccurate) inside-the-beltway assumption that all anybody cares about out here in the hinterland is federal elections (the land doesn't get much more hinter than California, especially now with The Prevaricator as our governor).  Many state parties need to raise money any way they can.  I have never believed that !
 GOTV, registration, and the like are important enough to congressional or presidential candidates that contributions for those purposes put much pressure on.  Furthermore, when parties publish slates and the like, BCRA puts pressure on them to leave federal candidates off.  That seems to me perverse, and a very serious infringement on speech.

    One point that I don't think has been mentioned is the Court's (nearly sub silentio) treatment of unions.  One of the questions raised by MCFL and Austin was whether they would apply to unions.  I always thought they would, because even though the logic used does not fit unions very well, it seemed likely the Court would want to keep the traditional (since World War II) parallel treatment of corporations and unions.  Apparently that was right (to borrow a metaphor from my message on Vieth earlier today, I, like Justice O'Connor, can be right once in a while on the stopped clock principle), since the Court in McConnell seems to have regarded unions coming under the rationale previously developed for corporations as too obvious for argment.  Which in this instance is a lot easier than coming up with some arguments.

    Finally, does anyone know of any other case in which an opinion for the Court was co-authored (other than a per curiam opinion)?

             Best,

            Daniel Lowenstein
            UCLA Law School
            405 Hilgard
            Los Angeles, California 90095-1476
            310-825-5148





<- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ->
This message is for the use of the intended recipient only.  It is
from a law firm and may contain information that is privileged and
confidential.  If you are not the intended recipient any disclosure,
copying, future distribution, or use of this communication is
prohibited.  If you have received this communication in error, please
advise us by return e-mail, or if you have received this communication
by fax advise us by telephone and delete/destroy the document.