From Volume 78, Number 3 (March 2005)
With the Bipartisan Campaign Reform Act (“BCRA”) of 2002, Congress enacted the most sweeping reform of the federal campaign system in nearly thirty years. Commentators hailed the bill as the “most far-reaching and controversial attempt to restructure the national political process in a generation” and as the answer to Americans’ demand for reform “in order to reclaim the power of their voices and their votes.” When the Supreme Court endorsed virtually the entire bill as constitutional in McConnell v. Federal Election Commission, it set the stage for the 2004 election, the first to be held under the new campaign rules.
Shortly after the Court’s announcement, however, policymakers and jurists acknowledged the pressing need for further reform. For example, reform groups petitioned the Federal Election Commission (“FEC”) to extend regulation to § 527 organizations. These nonprofit organizations are not constrained by contribution limitations to the same extent as political parties and political action committees; and they raised hundreds of millions of dollars to influence the Fall 2004 election. Moreover, the 2004 presidential campaign, far from heralding a new era, emphasized the inadequacy of the presidential public funding system, as three major candidates – including the two major-party nominees, George W. Bush and John Kerry – declined federal matching funds during the primary season so that they could spend unlimited amounts of money before their party conventions. The Presidential Election Campaign Fund, which provides public money to presidential campaigns, did not have sufficient resources in early 2004 to pay what it owed the Democratic candidates who chose to participate in the system, and it is projected to be insolvent by 2008. In short, it has become clear that BCRA has not solved the problems of federal campaign financing, but is only – at best – an interim step in a continuing process. The challenge now is to determine the shape of the next reform.