Undaunted by their losses in Congress, opponents of campaign finance legislation are ready to go to court over restrictions they say are unconstitutional limitations on free speech.
Proponents, likewise, are confident they will prevail in what is expected to be a long, hard-fought legal battle despite language in the legislation providing for an expedited review by the Supreme Court.
Both sides cite dozens of court cases over the past quarter century exploring the fine line between valid election spending controls and First Amendment rights.
The House passed a sweeping bill last week to stop the flow of hundreds of millions of dollars in unregulated soft money gifts to national political parties by unions, corporations and individuals. It also would curtail late-campaign "attack ads" by prohibiting the use of soft money to pay for them.
The Senate passed a similar bill last April but supporters there still need 60 votes to overcome a possible filibuster and pass the slightly altered House bill. That won't be easy, but, against the background of the Enron scandal, they believe they've got the momentum.
President Bush probably will sign the bill into law if it reaches his desk, his advisers say.
When he does, the bill's leading opponent, Sen. Mitch McConnell, R-Ky., and a broad coalition including the National Rifle Association, the National Right to Life Committee, the U.S. Chamber of Commerce and the American Civil Liberties Union promise a quick court challenge.
The main target is the provision banning the use of soft money in the final 30 days before a primary election or 60 days before a general election to buy so-called issue ads on TV or radio that in reality endorse or attack a candidate. Opponents say this violates the First Amendment statement that Congress shall make no law abridging the freedom of speech.
"The whole question about issue advocacy is going to be front and center," said the ACLU's Laura Murphy. "It's a clear free speech issue."
James Bopp Jr., attorney for the James Madison Center for Free Speech, said it would effectively prevent business groups, unions and interest groups from expressing their opinions in the final days before an election.
"This is a draconian attack on the participation rights of citizens groups and their ability to lobby Congress," he said.
But Matt Keller of Common Cause, which would join the Brennan Center for Justice and other groups defending the bill in court, said "it's a mischaracterization to say that we are banning anything."
Their aim, he said, is to enforce existing election law requiring that electioneering be paid for with regulated, limited and fully disclosed money.
Keller said his side was confident the bill's narrowly tailored language would stand the constitutional test. Nonetheless, supporters of the legislation included a "severability" clause stating that the rest of the bill is unaffected if one part is struck down by the courts.
The bestknown campaign finance case, Buckley v. Valeo, came in 1976, two years after the last significant change in campaign finance law. In it, the Supreme Court said contributions to candidates could be limited to prevent corruption or the appearance of influence-peddling. However, it also said limiting what could be spent by or on behalf of a candidate violated free speech rights.
Several more recent cases also have dealt with the issue:
In a 1996 Colorado case, the Supreme Court rejected all limits on party money spent independently of a candidate's campaign, even for ads backing the nominee. But in a 5-4 decision last year dealing with a different part of the same Colorado case, the Supreme Court upheld the right of the Federal Election Commission to set caps on hard money payments by the parties to candidates.
The Supreme Court, in a 6-3 decision in 2000, reaffirmed Missouri's $1,000 cap for individual hard money contributions to candidates for federal office.
Opponents of spending limits point to a federal court's ruling last year concerning Alaska's campaign finance law. It declared as unconstitutional a limit on soft money contributions to political parties for non-candidate activities.
The two sides agree that the bill's ban on soft money contributions to national party organizations is not likely to be a major part of court challenges. Such soft money donations to state and local party would still be allowed but would be subject to limits.
More problematic is the free-speech implications of language ordering the FEC to draw up new, expanded rules on improper coordination of political activity between special interest groups and candidates.
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