Page 1Page 2Page 3Page 4Page 5Page 6Page 7Page 8Page 9Page 10Page 11Page 12Page 13Page 14Page 15Page 16Page 17Page 18Page 19Page 20Page 21Page 22Page 23Page 24Page 25Page 26Page 27Page 285. The Bipartisan Campaign Reform Act andCongressional ElectionsPaul S. HerrnsonThe Bipartisan Campaign Reform Act (BCRA) of 2002, sometimes referredto as the McCain - Feingold Act, for its Senate sponsors, or the Shays -Meehan Act, for its sponsors in the House, was the first major piece of campaignfinance reform legislation to become law in more than two decades. The politicsof its passage by Congress and its implementation involves many of the recurringthemes in American politics: a clash of deep - seated values, a system of regula-tions desperately in need of an overhaul, a legislative journey marked by high lev-els ofpartisanship and hyperactive interest group activity, one or more scandals toserve as catalysts, and reliance on the Supreme Court to act as the ultimate arbiterof the law. In this chapter I analyze these aspects of the BCRA and speculateabout the law's impact on the conduct of congressional elections, primarily elec-tions for the House.A Clash of ValuesElections are the hallmark of a democracy. The principle of one person, onevote, suggests that citizens should have equal opportunity to influence govern-ment. The tenet that elections must involve a free exchange of opinions impliesthat individuals should be able to discuss candidates, political parties, and issues.Few scholars or citizens would quibble with these statements. Where individualsdisagree is about the role of money in elections.Underlying arguments about the proper role of money in politics are twofundamental values that are often in tension: liberty and equality. Those whoemphasize equality typically prefer to limit the role of campaign contributionsand spending in elections, maintaining that the private financing of electionsgives individuals and groups that commit large sums to electoral politics dispro-portionate influence over election outcomes. These donors also enjoy greaterpolitical access than do other citizens, which helps them gain influence in the pol-icymaking process.' Some critics believe that large contributions create relation-ships that give the appearance of corruption, border on bribery, and may on occa-sion involve both.Those who emphasize liberty generally argue that individuals and groupsthat contribute or spend money in elections are simply using those funds to givevoice to their opinions and the interests they represent. They consider the flow ofcampaign money to be part of a larger marketplace of ideas and believe thatinequalities in campaign resources among candidates, parties, and other groupsare a reflection of the intensity of their political support. Advocates of private107108Paul S. Herrnsonfinancing also point out that the money for campaigning must come from some-where and making contributions is part of a broader pattern of civic involvement.The BCRA's PredecessorsA host of laws governed federal elections before passage of the BCRA.2 Theearliest laws focused on eliminating the extortion of contributions from thoseemployed by, or holding contracts with, the federal government; severing the linksbetween campaign contributions and government regulations and contracts; lim-iting the influence of money in elections generally; and opening political cam-paign financing to public scrutiny. Nevertheless, the laws were laced with loop-holes that allowed for easy evasion by candidates, parties, individuals, and interestgroups. Moreover, because those charged with enforcing them had neither thepolitical motivation nor the resources to do so, some politicians and donors feltfree to commit brazen violations.Despite some attention- grabbing examples of corruption reported by thepress, only limited progress was made toward controlling the flow of campaignmoney during most of the twentieth century. Commissions were formed, billsintroduced, and proclamations made. However, ideological disagreements overthe proper role of money in politics, political leaders' desire to gain partisanadvantage, and the self- interest of individual members of the House and Senateand the party committees and interest groups that supported them made it diffi-cult for significant campaign finance reform to survive the legislative process.The Federal Election Campaign Act of 1974The passage of the Federal Election Campaign Act (FECA) of 1974 fol-lowed the public furor that arose as a result of the Watergate scandal.3 The inves-tigation following the break- in at Democratic Party headquarters in Washing-ton's Watergate Hotel revealed that President Nixon's Committee to Re - electthe President accepted illegal contributions, gave ambassadorships and otherpolitical appointments to large donors, granted favors to businesses that madelarge campaign contributions, and used a slush fund to finance the break-in itselfand other illegal activities.The 1974 reform had several objectives, including reducing candidates' andparties' dependence on large contributions; increasing candidates' and parties'incentives to raise large sums in small donations; diminishing the political influ-ence of businesses, unions, and other interest groups; decreasing the costs of run-ning for federal office; bringing transparency to the financing of elections; andeliminating corruption. It created contribution limits for candidates, individuals,parties, and interest groups, and it prohibited contributions from the treasuries ofcorporations, unions, trade associations, and other groups. The resultant campaignfinance system was funded solely with money that originated as limited contribu-tions from individual donors. The new law instituted spending limits for all fed-The Bipartisan Campaign Reform Act and Congressional Elections109eral campaigns and created opportunities for candidates for president to fund theirprimary campaigns with a mix of private and federal funds and their general elec-tion campaigns entirely with public money. The law included rigorous reportingrequirements for all federal campaign finance activity and created the independentFederal Election Commission (FEC) to administer its provisions.Shortly after the FECA went into effect it was challenged in court. In Janu-ary 1976 the Supreme Court ruled in Buckley v. Valeo that the provisions of the lawlimiting candidates' contributions to their own campaigns, limiting spending bycandidates'