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A Hard Look At Soft Money

Campaign buttons for both parties, over the capitol and money.
AP / CBS
With presidential primaries fast approaching, the Supreme Court has begun a detailed look at the role of money in politics and the complicated rules governing those who give and receive.

The court will hold a special one-day session Monday to examine whether a massive rewrite of the nation's campaign finance laws squares with constitutional free speech protections. The court's answer will govern how money is raised and spent in the 2004 election and beyond.

"What's on the line in this case is to what extent is the Supreme Court going to allow Congress and the states to regulate campaign finance in any effective way," said Richard L. Hasen, a professor at Loyola Law School and author of a guide to the nation's vast and technical web of political money laws.

In a measure of the case's importance and complexity, the court has scheduled a four-hour session to hear it. The court's new term does not begin until October, when it will resume the usual practice of hearing only one hour of oral argument in each case.

The court also will release audiotapes at the conclusion of the arguments, something it has done only twice before, in the 2000 cases about the presidential election and earlier this year in a landmark affirmative action case.

The court has promised nothing, but lawyers on both sides said they expect the justices will rule before the first presidential primary in January.

The campaign finance case concerns the law often known as "McCain-Feingold," after its chief Senate sponsors, John McCain, R-Ariz., and Russell Feingold, D-Wis.

The 2002 law was the biggest overhaul of federal campaign finance rules in a generation. It was meant to close loopholes that sponsors said fed the perception that money could buy influence in Washington.

Among other things, the law bans huge, unregulated donations to political parties known as "soft money," and more tightly controls political advertising in the weeks before an election.

President Bush signed the law with reservations, calling it flawed but an improvement over the old system. The first court challenges were filed within hours of Bush's signature, and the case grew to include a dozen appeals covering nearly 30 issues.

The Supreme Court must weigh the interest in rooting out corruption and the appearance of corruption against the notion that campaign cash is a form of speech or expression for all sides — donors, candidates, supporters and opponents.

Writing a check doesn't sound like free speech to most people, said Anthony Corrado, a campaign finance expert at Colby College and an adviser to some of the law's supporters.

"The courts have ruled that in modern politics one needs money to communicate with voters, therefore money is an essential part of the communication that takes place in elections, and therefore money is directly related to speech," Corrado said.

The new law's supporters say it merely tweaks rules the court already found constitutional in 1976, when it upheld anticorruption regulations that grew out of the Watergate scandal.

"This plugs the holes" that opened as political parties and candidates figured out ways to circumvent the old law, said Fred Wertheimer, a lawyer defending the law.

Opponents say the soft money ban and other features of the new law unconstitutionally silence donors, political parties and others. The law also is far too broad, and will have many intended consequences, they say.

"If this were just a little bit of tweaking, what were they celebrating so much when McCain-Feingold was passed?" First Amendment lawyer Floyd Abrams asked Friday.

It is hard to define the Republican or Democratic party line in the campaign finance case. The issue has made strange bedfellows, with the American Civil Liberties Union and the National Rifle Association ending up on the same side of the case, and McCain and fellow Republican Sen. Mitch McConnell of Kentucky parting company.

The emphasis on the influence of money on elections makes it easy to forget how rare it is for people to contribute to politicians.

Less than 2 percent of the voting-age population gave to a presidential or congressional candidate in the 1999-2000 election cycle. Eighty percent of those donors, or about 2.7 million people, gave less than $200, the Supreme Court was told in legal filings.

The case is McConnell v. FEC, 02-1674.