February 14, 2014
This past December, the Supreme Court agreed to review a pair of cases challenging the so-called “contraception mandate.”
This “mandate,” which was created as a consequence of the Affordable Care Act, requires that employer-provided health care plans cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling.”
This will be the second challenge to provisions of the ACA that the Supreme Court has heard since the law was enacted in March of 2010. At this rate, it is on track to see as many challenges before the high court as another major reform almost eight years prior to the ACA: Bipartisan Campaign Reform Act (BCRA).
BCRA, which was passed by the U.S. House of Representatives 12 years ago today on February 14, 2002, effected major campaign finance reforms when it was passed a little over a month later on March 27 of that year. And, despite also being known as the McCain-Feingold Act, its name in the Senate, the version of BCRA that became law (then known as the Shays-Meehan bill) originated in the U.S. House.
The campaign finance reforms of BCRA were found primarily in two major features. First, the Act banned, with limited exception, the raising of “soft money” by national parties and federal candidates or officials. “Soft money” means a contribution that was made to a political party and not a specific candidate, thus avoiding previous legal limitations.
The second of these features pertains to “electioneering communications,” which BCRA defines as political advertisements that “refer” to a clearly-identified federal candidate and are broadcast within 30 days of a primary or 60 days of a general election.
The Act prohibited unions and corporations who met certain criteria from spending general treasury funds on such “electioneering communications.” BCRA required the groups that were permitted to finance such communications to disclose disbursements of more than $10,000 and the identity of donors of $1,000 or more.
Since its enactment in March of 2002, BCRA has seen more than its share of challenges.
The first of these was McConnell v. FEC, which the Supreme Court ruled on in December of 2003. In McConnell, the Supreme Court largely upheld the challenged portions of BCRA, finding that any restrictions on free speech were justified by the government’s interest in preventing “both the actual corruption threatened by large financial contributions and…the appearance of corruption” that may result from these contributions.
Next came FEC v. Wisconsin Right to Life in June 2007, in which the Supreme Court struck down as unconstitutional the law’s ban on “electioneering communications” (defined above) as applied to advertisements “susceptible of some reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
2008 brought Davis v. FEC, which struck down BCRA’s “millionaire amendment” that increased the legal limit on contributions for a candidate who was substantially outspent by an opposing candidate who was using personal wealth.
Finally, and most notoriously, is 2010’s Citizens United v. FEC. Citizens United overturned McConnell, holding the “electioneering communications” limitations of BCRA as an unconstitutional infringement on the First Amendment rights of those unions and corporations subject to the regulations.
Because of Citizens United, many of BCRA’s most prominent provisions were left in tatters – less than eight years after it was originally enacted. No other law in the past two decades has been as legally assaulted as BCRA (although the ACA is certainly on track to challenge BCRA for that title).
Public opinion of Citizens United, the case that left BCRA in its current dilapidated state, is not high, whereas public opinion of potential campaign finance reforms similar to BCRA are at the opposite end of the spectrum.
Still, even if another set of reforms is enacted, it seems likely that the legal assault on such a law would be swift and harsh, if BCRA serves as an example.
Ironically, although the Constitution has been interpreted by the Citizens United majority as forbidding such campaign finance restrictions as enacted in BCRA, both sets of laws were drafted to protect and encourage democracy in the U.S.