By Alec MacGillis
Washington Post Staff Writer
Wednesday, June 27, 2007
The political world scrambled yesterday to reckon with the Supreme Court's loosening of limits on "soft money" expenditures and its implications for the 2008 campaign season: a potential surge in television advertisements paid for by unions and corporations that in recent years had fewer outlets for their cash.
"This could possibly double the expenditures in the 2008 election as opposed to 2004, but that's free speech, and that's good," said Jim Backlin, the Christian Coalition's vice president for legislative affairs.
One immediate effect of the ruling, said Republican elections lawyer Benjamin L. Ginsberg, is that the parties' presidential nominees will probably not agree to limit spending in return for accepting $90 million in public campaign funds -- something already highly unlikely -- because they will be worried about being hit by late union or corporate advertising.
"The ruling is the final nail in the coffin of the public financing system," said Ginsberg, who is advising former Massachusetts governor Mitt Romney's campaign.
The 5 to 4 ruling issued Monday struck down as unconstitutional a key provision of the McCain-Feingold campaign finance law of 2002: Corporations and unions could not pay for ads that mention federal candidates in the month before a primary election or in the two months before a general election. That provision had been included in the law to protect candidates against last-minute attacks funded by corporations or unions that purport to address a political issue but are meant to influence the election.
The decision also broadened the definition of such "issue ads" to make it easier for unions, corporations or other third parties to run advertisements that are paid for with "soft money" -- unlimited funds spent beyond federally regulated "hard money," which is given directly to campaigns or political action committees.
Under the law, soft money cannot be used for ads that directly urge a candidate's election or defeat, and the Federal Election Commission recently sought to clamp down on issue ads seemingly intended to influence an election. But the ruling pushed back against those efforts, stating that a soft-money ad could be viewed as an election ad only if there was no other possible interpretation of its intent.
To Ginsberg, the ruling further revealed what he argues is the flaw in McCain-Feingold's main aim -- ending the millions of dollars in soft-money contributions from unions and corporations to political parties. He said the law did not end the use of soft money, but only guaranteed that it would be spent outside of party control.
That soft-money spending in 2008, he said, will be less transparent than the spending in 2004 by "527 groups" used to exploit a loophole in McCain-Feingold, primarily funded by wealthy individuals instead of corporations. Those groups were required to disclose contributors to the Internal Revenue Service; campaign groups funded by unions and corporations are not.
"The handcuffing of the parties by McCain-Feingold makes even less sense now," Ginsberg said.
Unions and business groups praised the ruling for loosening the restrictions on them. But they played down its impact on their plans for spending in the 2008 campaign season, since they say their "issue ads" are not intended to affect elections.
Bill Samuel, legislative director for the AFL-CIO, said the labor organization has in recent years been spending relatively little in voter outreach funds on issue ads, which he said was a decision made independent of the McCain-Feingold rules. "We've really consciously decided to put a much greater emphasis on grass-roots mobilization," he said.
Steven J. Law, general counsel for the U.S. Chamber of Commerce, noted that its spending on issue ads has continued to increase in recent years (to $20 million in 2006) despite the McCain-Feingold restriction, proof that the ads were not directed solely at influencing elections.
"The goal is to impact policies that matter to our members," he said. "The Chamber will continue to play very robustly in that area. This simply gives us more operational freedom."
Some special interest groups predicted that issue-ad spending will not be as high as one might expect, given growing doubt about the effectiveness of TV ads in a splintered media environment. Gregory S. Casey, chief executive of the business group BIPAC, said businesses have seen increased success in voter registration and turnout drives done via e-mail.
"Just because we can [run issue ads] doesn't mean we should," Casey said. "If we just replicate our behavior pre-[McCain-Feingold], that would be a mistake."
What remains to be seen, lawyers said, is how the election commission will implement the ruling when it comes to distinguishing allowable issue ads from obvious campaign ads.
The commission might have little room to maneuver, lawyers said, given how strongly the court repudiated recent attempts to limit the language that could be used in issue ads.
"What the court said was pretty explicit," Democratic elections lawyer Marc E. Elias said. "It's not going to let the FEC push that line."