Even as Congress debated the McCain-Feingold bill to reform the campaign finance system, it knew that whatever measure passed would wind up in the Supreme Court. In fact, it even arranged for the appeal to be "fast-tracked" directly from the district court that heard the initial challenge to the Supreme Court, and allowed Senator Mitch McConnell (R-Ky.) to be the lead plaintiff.
The question of reforming the way campaigns have been financed in America is nearly a century old, with the first law passed in 1907. In 1971, Congress passed two statutes to regulate campaign contributions, and in the wake of the Watergate scandals amended these laws with the Presidential Election Campaign Act of 1974. In Buckley v. Valeo (1976) a sharply divided Court struck down most of the provisions of the 1974 act relating to spending as violations of freedom of speech, while upholding many of the donation restrictions. Since then there has been a sharp debate over whether in fact "money is speech," and if so, whether the honesty and integrity of the electoral process comprises the important state interest needed to limit speech.
The primary issue is so-called "soft money," dollars that do not go directly to a candidate's campaign coffers but to a political party or other interest group that may then run so-called "issue ads." Critics claim that these issue ads are in fact promotions for a candidate, while supporters argue that it is their constitutional right to have their say about important issues. The public can then decide whether they believe one candidate or the other agrees more with them on specific issues.
Many of the provisions of the Bipartisan Campaign Reform Act were struck down in the district court, while others were upheld. The district court's multiple opinions ran nearly 1500 printed pages, and give no guide whatsoever to what the justices of the Supreme Court will do. A number of groups that rarely cooperate with each other, such as the American Civil Liberties Union and the National Rifle Association, are cooperating in opposing the bill.
The Court itself has sent mixed signals in the past few Terms over whether it still holds to the basic premise of Buckley, or whether it is willing to allow a lesser standard to govern restrictions on the type of speech involved in campaign finance. Recognizing the importance of the question, however, the Court has set oral argument a full month before the rest of the Term will open, and has doubled the time normally allotted from one to two hours. By hearing the case early, a decision could come down late in the fall or early in the winter, in time to clear up any confusion about the bill in time for the 2004 presidential election. McConnell v. Federal Election Commission.