The Future of Reform: Campaign Finance after the Bipartisan Campaign Reform Act of 2002

Richard Briffault, Columbia Law School


On March 27, 2002, President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 ("BCRA" or "the Act") into law. The culmination of a protracted six-year legislative and political struggle, BCRA is the most significant change in federal campaign finance law since the early 1970s, when the Federal Election Campaign Act ("FECA") of 1971 and FECA Amendments of 1974 were adopted. The Act addresses a broad range of campaign finance issues, including fundraising on federal property, contributions by foreign nationals, donations to the presidential inauguration committee, electronic filing and Internet access to campaign disclosure reports, and penalties for the violation of federal campaign finance restrictions and requirements. But the heart of the Act consists of new and more restrictive regulations of the two phenomena that have dominated the campaign finance debate for more than a decade – soft money and issue advocacy. As of the day after the November 2002 general election, the Act sharply curbs the ability of state parties to use soft money in federal elections and completely bars the national parties from using soft money. The Act also expands FECA's disclosure requirements and prohibitions on corporate and union expenditures to include most "issue advocacy" in the pre-election period.

This article considers the future of campaign finance reform in the immediate aftermath of BCRA. Part II considers the constitutional issues posed by the Act's soft money and issue advocacy restrictions. Part III discusses the FEC's new rules and their implications for BCRA. Part IV considers the next items on the reform agenda if BCRA's soft money and issue advocacy limits are sustained – public funding for candidates and reform (or replacement) of the FEC.