Return to Home
  Federal Issues

Cox was one of six panelists invited to discuss the topic of "Coping With BCRA" at the conference entitled "Reconsidering Campaign Finance Reform"...



CFIF Assistant General Counsel Tells University of Virginia Conference That McCain-Feingold, Legal Uncertainty Gags Advocacy Groups

The Assistant General Counsel of the Center for Individual Freedom, Reid Alan Cox, told a conference of academic experts on campaign finance Tuesday that both the actual restrictions contained in and the legal uncertainty surrounding the Bipartisan Campaign Reform Act of 2002, popularly known as McCain-Feingold, have effectively silenced non-profit ideological interest groups since the law went into effect after the last Congressional elections. Cox was one of six panelists invited to discuss the topic of "Coping With BCRA" at the conference entitled "Reconsidering Campaign Finance Reform" sponsored by the Miller Center of Public Affairs at the University of Virginia. Also on the panel were counsel to both political parties, journalists from the National Journal and National Public Radio, and the Executive Director of the Progressive Majority. The panel was moderated by Professor Michael Malbin, who is the Executive Director of the Washington, D.C.-based Campaign Finance Institute and a professor of political science at SUNY-Albany.

Cox told the assembled conference of academic campaign finance experts that the combination of BCRA’s overbroad speech restrictions and the legal uncertainty surrounding the state of campaign finance law has served to drastically reduce interest-group-sponsored issue advertisements and political speech since McCain-Feingold went into effect. It’s been almost impossible to cope with BCRA because not only does the law wholly rewrite the rules for political speech and funding by which interest groups must play, but those rules have been in a constant state of flux since the law went into effect, Cox explained.

"Since I was hired as the Assistant General Counsel of the Center a little more than a year ago, I have lived through three different campaign finance regimes," Cox noted. "Before the last Congressional elections, we all knew we could publicly discuss the issues, as well as the candidates, so long as we did not expressly advocate a candidate’s election or defeat – that’s the standard from Buckley v. Valeo. Then BCRA went into effect, and we weren’t allowed even to ‘refer’ to a candidate within either 30 days of a primary [election] or 60 days of a general [election]. But at least we could speak our minds until those off-limits months. And then, of course, the special three-judge district court came down with their BCRA decision, and we learned that, according to Judge [Richard] Leon, running issues ads that could be construed as supporting or opposing a candidate were out-of-bounds at all times."

Other panelists agreed that the law was problematic, and each expressed concerns. Joseph Sandler and Charles Spies, lawyers for the Democratic and Republican National Committees, respectively, bemoaned how McCain-Feingold isolates national political parties from their state and local counterparts and constituencies. National Journal reporter Eliza Newlin Carney voiced doubts about the ability to "follow the money" under the new law’s disclosure provisions. In general, the panelists agreed that the newness of McCain-Feingold combined with its yet unsettled constitutional validity have been serious concerns for all those wanting to fund and disseminate public policy messages.

The U.S. Supreme Court heard oral arguments in the consolidated cases challenging the constitutionality of BCRA on Monday, September 8, 2003, and has yet to issue its decision. The High Court’s resolution of the cases is expected to be most important legal decision in 25 years concerning the permissibility of regulating political speech and campaign finance.

[Posted October 2, 2003]