A 2003 United States Supreme Court opinion in which the Court held that the majority of the prohibitions on federal campaign funding imposed by Congress under the Bipartisan Campaign Reofrm Act (“BCRA”) are
In 1971, Congress enacted the Federal Election Campaign Act (“FECA”), which required disclosure of certain contributions that were intended to influence federal elections. The FECA also limited the amount that could be given directly to parties and candidates for such elections. Since that time, political parties and officers have found ways to circumvent the statute by receiving „soft money,‰ which was not subject to the rules established by the FECA. Since the FECA‚s rules only apply to contributions given solely to influence a federal election, the parties could simply direct donations to be given to state and local affiliates. Also, in upholding the FECA, the United States Supreme Court had seemed to draw a distinction between express advocacy, which could be regulated, and issue advocacy, which could not. Therefore, if money was contributed for advertising that was „issue advocacy,‰ the FECA rules did not apply. So long as the advertising did not expressly advocate voting for or against a federal candidate, it could be funded by soft money. In 2002, Congress enacted the BCRA, which was intended to plug the soft money loophole by modifying the FECA. United States Senator Mitch McConnell (McConnell), along with several other parties and organizations, filed suit in the United States District Court for the District of Columbia (District Court), claiming that the BCRA was an unconstitutional violation of the First Amendment right to free speech. The District Court found several provisions of the BCRA unconstitutional, while upholding several others. Pursuant to a special provision of the BCRA, the losing parties were able to appeal directly to the United States Supreme Court (the Court) after the District Court‚s decision. The Court held that the restrictions imposed on speech by the BCRA are subject to a more deferential standard of review of closely drawn scrutiny, rather than other restrictions on speech that require strict scrutiny. Under this standard, the Court upheld provisions that: forbid national parties from receiving or spending soft money; prohibit state and local party committees from using soft money for activities that affect federal elections; forbid committees and their agents from soliciting tax exempt organizations that make expenditures in connection with a federal election; forbid federal candidates and officeholders from soliciting and receiving soft money in connection with federal elections, and limits the ability to do so in state and local elections; and forbid state and local candidates and officeholders from raising or spending soft money to fund ads that promote or attack federal candidates. The Court held that Congress had determined that preventing actual corruption and the appearance of corruption was an important government interest, and that decision is entitled to deference. The Court also found that each of the provisions upheld are closely drawn so as to serve that governmental interest. Finally, the Court upheld the BCRA‚s requirement of disclosure for contributions given to an „electioneering communication,‰ holding that the requirement is not too overly broad. In so holding, the Court also said that there is no constitutional difference between express advocacy and issue advocacy for purposes of regulation.