The Bipartisan Campaign Reform Act of 2002 (BCRA), also known as the McCain-Feingold Act, is a federal law that amended FECA, changing the nature of campaign finance, specifically in the realm of soft money. FECA had previously been amended to limit individual contributions and expenditures by individuals and groups. As a result of Buckley, campaign contributions became less scrutinized than expenditures. Additionally, the US Supreme Court ruled that Congress could not, consistent with the First Amendment, regulate advertisements that discuss public issues, though it could require the disclosure of independent expenditures because of the public’s right to election information. In passing the BCRA, Congress attempted to address the need for substantive campaign finance reform in light of the spending excesses of the 1996 election.

Overview of the BRCA

The BRCA consisted of comprehensive amendments to FECA that created a new form of speech in light of the “express advocacy” standard created in Buckley. Specifically, the BCRA distinguishes a new form of campaign advertising called electioneering communications, defined as an ad that: (1) airs 60 days before a general election or 30 days before a primary, runoff, or caucus; (2) refers to a specific federal candidate; and (3) is targeted to the relevant electorate. An electioneering communication is an ad with the sole purpose of attacking, opposing, supporting or promoting a federal candidate with the exceptions of news stories and editorials.

Electioneering communications must disclose independent expenditures. Individuals and groups making independent expenditures must disclose who is receiving the money and the amount of money. However, corporations and labor unions are banned from using funds from their general treasuries for electioneering communications. Amounts spent on political advertising that are not directed by, or associated with, a candidate or political campaign are known as independent expenditures and are not subjected to the spending limits set forth in the Act.

The most well-known and arguably most important part of the BRCA is its ban on soft money (contributions that are not regulated by federal election laws). The BCRA prohibits national, local and state party committees from receiving or spending soft money.

Legislative History

On September 7, 1995, the original version of BCRA was introduced as S. 1219 in the 104th Congress. The original bill provided more than restrictions on soft money; it also called for voluntary spending ceilings in congressional races, free broadcast time and reduced rate mailing privileges for candidates who abided by the spending ceilings and limits on self-financing of candidate campaigns. In each session of Congress thereafter, Senators John McCain and Russ Feingold introduced a modified version of their bipartisan campaign reform legislation.

On January 22, 2001, the 107th Congress referred the modified bill, S. 27, which the Senate passed by a vote of 59-41, to the Committee on Rules and Administration. Previously, the Senate had blocked passage of the Shays-Meehan bill, a substitute bill. The House Administration Committee initiated a series of hearings on campaign finance reform from March through May of 2002. On July 12, 2002, the House rejected, by 203-228, a proposed rule to consider the campaign finance issue, leaving the bills suspended. Because the McCain-Feingold bill had already failed in the Senate, the Shays-Maheen bill was as close to the McCain-Feingold bill as possible without losing the legislation in the conference committee, which the Senate approved on March 22, 2002.

On March 27, 2002, President George W. Bush signed the BCRA, which was sponsored by Representatives Martin Meehan and Christopher Shays, into law. The BCRA is still commonly referred to as the McCain-Feingold bill.

Litigation

Because the sponsors recognized that the BCRA would likely be challenged in court, a provision was included that allowed for an expedited court review process. A three-judge federal panel in Washington, DC, would first hear legal challenges to BCRA, and the ruling of the panel would be subject to direct review by the US Supreme Court.

The same day that BCRA came into effect, Senator Mitch McConnell challenged its constitutionality in McConnell v. Federal Election Commission, in which the US Supreme Court found that the government had a substantial interest in preventing corruption that was proven by an overwhelming amount of evidence. The ban on soft money was upheld, as was most of the BRCA, including the limitations imposed on electioneering communications, as the government had an interest in eliminating ads that were designed to look like issue ads but were actually designed to favor a particular candidate. Justice Scalia dissented, however, stating that limiting candidates in the amount of assistance they can receive is actually a limit on the candidate’s fundamental right to free speech.

In Federal Election Commission v. Massachusetts Citizens for Life, Massachusetts Citizens for Life (MCFL), a nonprofit corporation under Massachusetts law, sought to make expenditures to urge voters to support pro-life candidates. In the case, the US Supreme Court examined whether MCFL’s expenditures fell under the BCRA’s expenditure ban and, if so, whether this law, as applied to MCFL, was valid. The Court found that even if MCFL did not expressly advocate the election or defeat of a candidate, its pamphlets and message urging voters to support pro-life candidates constituted a form of “express advocacy” that was within the range of activities proscribed by this section of the law. However, the Court ruled that the BCRA, as applied to MCFL, was unconstitutional, noting that MCFL’s expenditures were the type of independent expenditures described in Buckley and protected by the First Amendment’s free speech protections.