By Matthew Mosk and Robert Barnes
Washington Post Staff Writers
Wednesday, March 5, 2008
Some of the same conservative activists who have recently signed on to Sen. John McCain's presidential campaign are also still hard at work trying to undo his most famous legislative accomplishment.
To date, these grudging McCain supporters have mounted four Supreme Court challenges and others in lower courts to dismantle the landmark 2002 law known as McCain-Feingold. The legislation, by McCain and Sen. Russell Feingold (D-Wis.), made broad changes in federal political fundraising. Conservative activists have attacked it since its passage as an infringement on free speech.
Now, with McCain the apparent Republican nominee, these same activists have said they will support McCain but have no intention of dropping their challenges to the fundraising law. Their determination to undo McCain's legislation speaks to the deep fault lines that divide the Republican base from McCain -- and to the challenges McCain faces in winning them over.
David Norcross, a former Republican National Committee general counsel and lobbyist who backed Mitt Romney earlier, said he would support McCain "100 percent" while still trying to erase McCain's campaign finance law from the books.
"Whether he's the nominee, the president or whatever, those of us who have been in the trenches are not about to back off," he said.
James Bopp Jr., an RNC member from Indiana and early Romney supporter, said that while he continues to challenge McCain's legislation, he will also work to deliver McCain to the White House.
"If you want to participate in politics, you have to be prepared to deal in a world in which there are imperfect choices," Bopp said.
Some opponents of the law are still weighing whether they will support McCain. David Keating, a longtime conservative activist who wants McCain-Feingold overturned, last week called a McCain presidency "a scary thought." He said McCain's candidacy looks only narrowly more palatable than that of his Democratic opponents.
The McCain-Feingold legislation, known formally as the Bipartisan Campaign Reform Act, infuriated conservative Republicans because of its ban on "soft money" -- unlimited contributions from wealthy donors that were funneled through political parties and into the hands of political candidates. The law also limited the ability of special interest groups to circumvent contribution limits by buying their own ads on behalf of candidates or against their opponents.
While McCain and other advocates considered the ban crucial, opponents contended that the measure trampled on free speech.
Norcross, a trustee with the James Madison Center, which spent more than $1 million last year challenging the law, said efforts to erase McCain's "pernicious" legislation are gaining momentum. Multiple lawsuits are making their way to the Supreme Court, and two challenges are pending. Bopp is the center's general counsel.
The Supreme Court has already ruled in two previous challenges. In 2003, the court upheld key elements of McCain-Feingold as constitutional. But President Bush has since replaced two justices. When the second case reached the court last year, Chief Justice John G. Roberts Jr. rendered an opinion that, by most readings, knocked a critical peg from the law.
Roberts's ruling said corporate- or union-financed "issue ads" prohibited by McCain's legislation were no longer totally off-limits.
"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," Roberts wrote. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."
Election law expert Edward B. Foley, a law professor at Ohio State University, said the case exposed vulnerabilities in McCain-Feingold. Bush's replacement of Justice Sandra Day O'Connor -- the key fifth vote in swatting away the first court challenge -- with Justice Samuel A. Alito Jr. has "absolutely'' changed the court's view of the law, he said .
One matter that will be argued before the court in April challenges what is sometimes called the "Millionaires Amendment," a provision that loosens fundraising restrictions for candidates running against wealthy, self-financed opponents.
The court should announce soon whether it will also hear the case brought by the makers of "Hillary: The Movie" who want to eliminate a provision requiring groups that finance campaign-related advertising to disclose donor names.
Fred Wertheimer, who heads the watchdog group Democracy 21, an architect of McCain-Feingold, said he recognizes that with the changes in the court's makeup, new challenges are likely. But he said he took solace in the fact that no one has yet challenged the legislation's core provision -- the soft-money ban.
Even that may change, said Bopp, who has handled many of the challenges, including the pending disclosure case. Bopp said he believes the soft-money ban is "fraught with the same problems that the rest of the law is fraught with, which is its breadth."
Bopp said he agreed to support McCain after the Arizona senator promised to appoint strict-constructionist judges who are faithful to the First Amendment.
Since McCain's emergence as the likely Republican nominee, he has faced pressure from Bopp and others to clarify his vision for future Supreme Court appointments and mollify concerns that campaign finance would become a litmus test for judicial appointments.
McCain was put on the defensive by conservative columnists who said the senator in a private meeting had questioned whether Alito was too openly conservative. McCain, who supported Alito's confirmation, denied making the statement. He told the Federalist Society he would "insist" on judicial nominees such as Roberts and Alito, who are "faithful to the Constitution" and "had a record that demonstrated that fidelity."
Foley called the comment ironic in the context of McCain's campaign finance legislation. "It occurred to me that might contribute to the undoing of his legislative legacy."
Research editor Alice Crites contributed to this report.