this goal in an as expedited a manner as possible and thereby served "the strong public interest in election law clarity and stability." Henderson Op. at 6 n. 1.
Three separate opinions by the members of this three-judge panel follow this per curiam opinion. Given the complexity of the rulings, and the fact that not any one opinion is fully dispositive, the opinions are presented in order of seniority of the members of this three-judge panel. Accordingly, Judge Henderson's opinion appears first, followed by Judge Kollar Kotelly's opinion and then Judge Leon's opinion.
*fn2 The ban on corporate and labor union contributions and expenditures was eventually codified at 18 U.S.C. § 610, and later transferred to the Federal Election Campaign Act, 2 U.S.C. § 441b, when Congress re-evaluated the Act in the aftermath of the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Federal Election Campaign Act Amendments of 1976, P.L. 94-283, 90 Stat. 475. See also S.Rep. No. 677, 94th Cong., 2d Sess. 2-3 (1976), reprinted in 1976 U.S.C.C.A.N. 929, 930-31.
*fn3 A sampling of the extraordinary size of the expenditures by labor on federal elections demonstrates that "One [labor organization] was found to have an annual budget for `educational' work approximating $1,500,000, and among other things regularly supplies over 500 radio stations with `briefs for broadcasters.' Another, with an annual budget of over $300,000 for political `education,' has distributed some 80,000,000 pieces of literature, including a quarter million copies of one article. Another, representing an organized labor membership of 5,000,000, has raised $700,000 for its national organizations in union contributions for political `education' in a few months, and a great deal more has been raised for the same purpose and expended by its local organizations.'" UAW, 352 U.S. at 580-81, 77 S.Ct. 529 (quoting H.R.Rep. No. 2093, 78th Cong., 2d Sess. 3).
*fn4 The D.C. Circuit's decision striking down 2 U.S.C. § 437a was not appealed to the Supreme Court. Buckley, 424 U.S. at 11 n. 7, 96 S.Ct. 612.
*fn5 Following Buckley, there have been a number of important Supreme Court opinions that have addressed application of Buckley in other contexts. It is more appropriate to discuss these cases in the context of each Judge's separate opinion.
*fn6 FECA defines "person" as "an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons, but such term does not include the Federal Government or any authority of the Federal Government." 2 U.S.C. § 431(11).
*fn7 Under BCRA, these contribution limits have been raised. Persons can now contribute $2,000 to candidates and $25,000 to national political party committees. BCRA §§ 307(a)(1), 307(a)(2); FECA § 315(a)(1); 2 U.S.C. § 441a(a)(1). Also under BCRA, Congress has carved state party committees out of § 441a(a)(1)(C) and increased the contribution limit for state party committees from $5,000 to $10,000. BCRA § 102; FECA § 315(a)(1); 2 U.S.C. § 441a(a)(1). Moreover, the contribution limits applicable to candidates and national party committees have been indexed to the consumer price index and will increase with inflation. BCRA § 307(d); FECA § 315(c); 2 U.S.C. § 441a(c).
*fn8 BCRA has increased the aggregate limit on individual contributions from $25,000 per year to $95,000 per two-year election cycle, of which $37,500 may be contributed to candidates. BCRA § 307(b); FECA § 315(a)(3); 2 U.S.C. § 441a(a)(3).
*fn9 There is a degree of skirmishing in the briefs over the appropriate terminology for "nonfederal money." Defendants use the phrase "soft money." Plaintiffs refer to "soft money" as "state-regulated" or "nonfederal" money. The Court has, for the most part, adopted the nomenclature "nonfederal" money because that is the term that the FEC has used during the rulemaking process implementing BCRA, Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 Fed. Reg. 49064 (July 29, 2002) ("Because the term `soft money' is used by different people to refer to a wide variety of funds under different circumstances, the Commission is using the term `non-Federal funds' in the final rules rather than the term `soft money.'"), even though BCRA uses the term "soft money," BCRA § 101 (entitled "Soft money of political parties") (emphasis added) and even though on occasion the Supreme Court has also used the phrase "soft money," see, e.g., Colorado Republican Federal Campaign Committee v. FEC ("Colorado I"), 518 U.S. 604, 616, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) ("Unregulated `soft money' contributions may not be used to influence a federal campaign, except when used in the limited, party-building activities specifically designated in the statute."). Despite the references in the case law and the statute to the term "soft money," for the sake of clarity in an area of law that demands absolute precision, the Court generally eschews the phraseology "hard money" or "soft money" in favor of "federal funds" or "nonfederal funds." Federal funds are those monies regulated under FECA, as amended, and nonfederal funds are those monies that may or may not be regulated under state law, but not federal law.
*fn10 In 1979 Congress again amended FECA to exempt two new sets of activities from the definition of contribution and expenditure. First, state and local party disbursements for campaign materials such as pins, bumper stickers, and yard signs used in connection with volunteer activities on behalf of the party's nominees were exempted from FECA's contribution limits provided that the activity was paid for with federal money. 2 U.S.C. § 431(8)(B)(ix), 9(B)(viii). The second exemption related to a state party's payment for "the costs of voter registration and [GOTV] activities" conducted on behalf of the party's presidential ticket. 2 U.S.C. § 431(8)(B)(xi), (9)(B)(ix). This exemption was also conditioned on the use of federal money for the activity. Hence, for both of these activities unlimited federal money could be used to pay for them because they were exempted from the definition of "contribution" and "expenditure." For state and local parties that opted to use nonfederal funds to pay for these activities, allocation was still permitted.
*fn11 As Defense Expert Mann plainly concedes, "Just what amount of soft money activity the parties pursued in the 1980s is less certain [because] `[n]onfederal' funds were not subject to federal disclosure requirements, only to the disclosure laws in states where soft money was spent." Mann Expert Report at 12. It was not until 1992 that the FEC began collecting official data on national parties use of nonfederal funds, so any attempts at pinpointing the amount of nonfederal funds spent by the national parties before 1992 are estimates. Notably, Plaintiffs do not challenge any of the pre-1992 estimates (or any of the post-1992 data collected by the Commission). Therefore, the Court relies on these statistics.
*fn12 The Court observes that Common Cause v. FEC demonstrates that as early as 1984, before any official statistics on nonfederal funds were kept by the Commission, there was concern over the influence of these monies on federal elections. However, the Commission in 1984 determined that, "Common Cause has not presented evidence of instances in which `soft money' has been used to influence federal elections sufficient to justify the stringent rules proposed in its petition." Common Cause, 692 F. Supp. at 1393 (citing the Commission's April 17, 1986, Notice of Disposition).
*fn13 The Commission permitted, inter alia, the following expenses to be allocated: administrative expenses, which included rent, utilities, office supplies, and salaries, 11 C.F.R. § 106.5(a)(2)(i) (1991); the direct costs of a fundraising program or event, where federal and nonfederal funds are collected by one committee, 11 C.F.R. § 106.5(a)(2)(ii) (1991); and "generic voter drives," which included voter identification, voter registration, and get-out-the-vote ("GOTV") drives where a specific candidate was not mentioned. 11 C.F.R. § 106.5(a)(2)(iv) (1991).
*fn14 The argument that such advertisements could be paid for with nonfederal funds had its origins in Buckley. The Supreme Court in Buckley, in an attempt to save from unconstitutional vagueness the independent expenditure prohibitions, narrowed them to apply "only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Buckley, 424 U.S. at 44, 96 S.Ct. 612. In a footnote, the Buckley Court found that "[t]his [narrowing] construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as `vote for,' `elect,' `support,' `cast your ballot for.' `Smith for Congress,' `vote against,' `defeat,' `reject.'" Id. at 44 n. 52, 96 S.Ct. 612. Even though the Supreme Court narrowed the provision of the law, it struck down the expenditure provision as unconstitutional as written and as narrowed by the Court. Id. at 44, 96 S.Ct. 612.
It was based on this language that the national parties in 1995 and 1996 argued that as long as they ran advertisements that did not mention "express words of advocacy of election or defeat," they could use nonfederal money to run advertisements that supported their presidential candidate or attacked his opponent.
*fn15 The FEC had previously ruled that party committees could sponsor issue advocacy advertisements that did not feature a federal candidate and pay for these advertisements with a combination of federal and nonfederal dollars as permitted under the allocation regulations. FEC Advisor Op. 1995-25 (discussing that allocation rules were permissible to allocate funding for "RNC plans to produce and air media advertisements on a series of legislative proposals being considered by the U.S. Congress, such as the balanced budget debate and welfare reform"). The national parties used this advisory opinion as justification for their issue advocacy campaigns featuring candidates for federal office and paid for with nonfederal money.
*fn16 See Bipartisan Campaign Finance Reform Act of 1998, H.R. 2183, 105th Cong. (1998), available at http://thomas.loc.gov.
*fn17 See id.; Bipartisan Campaign Reform Act of 1999, H.R. 417, 106th (1999); Bipartisan Campaign Finance Reform Act of 2002, H.R. 2356, 116 Stat. 81 (2002).
*fn18 According to Congressional Quarterly reporter David Mark, the House Leadership only allowed floor consideration of House Bill 2183 after it appeared that supporters of the bill had nearly secured the requisite 218 signatures on a discharge petition to automatically bring the bill to the floor, which did not require the consent of the leadership. See David Mark, Campaign Finance Discharge Petition Off to Fast Start, Congressional Quarterly Daily Monitor (July 31, 2001).
*fn19 When considering most major legislation, the House of Representatives typically adopts a rule, in the form of a House Resolution, that governs, and generally limits, debate on the underlining bill. In order to expedite consideration of the underlining bill, the rule suspends the proceedings of the House of Representatives, and the body operates as one large committee, the Committee of the Whole House on the State of the Union ("Committee of the Whole"). Walter J. Oleszek, Congressional Procedures and the Policy Process 151-53 (5th ed., CQ Press 2001). This parliamentary mechanism enables the House to act with a quorum less than the requisite 218 members; only 100 members are needed to constitute a quorum in the Committee of the Whole. Id. at 152. (There are numerous other technical distinctions between the Committee of the Whole and the House of Representatives that enable expeditious consideration of legislation). Id. at 152-53. After the Committee of the Whole considers the underlining legislation, generally, the rule governing debate automatically dissolves the Committee of the Whole, and the House of Representatives reconvenes to vote on the underlining bill for final passage.
*fn20 Beyond making numerous substantive changes to the underling bill, the Shays-Meehan substitute amendment changed the title of the bill from the "Bipartisan Campaign Integrity Act of 1997," 144 Cong. Rec. H3774 (daily ed. May 22, 1998), to the "Bipartisan Campaign Reform Act of 1998," 144 Cong. Rec. H4790-96 (daily ed. June 18, 1998).
*fn21 While debate on the Senate floor does not always lead to an all-out filibuster, on controversial legislation, the Senate typically invokes cloture to end the threat of unlimited debate or simply to gauge support for the underlining bill. See Walter J. Oleszek, Congressional Procedures and the Policy Process 231-34 (5th ed., CQ Press 2001). Under Rule XXII of the Standing Rules of the Senate, if "three-fifths of the Senators duly chosen and sworn" (60 Senators if the Senate is at its full membership) vote in the affirmative on a motion for cloture, further debate on the question shall be limited to no more than one hour for each Senator, and the time for consideration of the matter shall be limited to 30 additional hours, unless increased by another three-fifths vote. See Standing Rules of the Senate, Rule XXII, available at http://rules.senate.gov/senaterules/rule22.htm.
*fn22 Bipartisan Campaign Reform Act of 2001, S. 27, 107th Cong. (2001).
*fn23 Faced with the fact that Senate Bill 27 was unlikely to garner the support of a majority of the House, and given the fact that House Bill 380 differed from Senate Bill 27, Representatives Shays and Meehan met with members of the Senate to work out a compromise bill. The agreement they reached was reflected in House Bill 2356. See David Mark & John Cochran, House Panel to Mark Up Dueling Campaign Finance Bills, Congressional Quarterly Daily Monitor (June 27, 2001) ("The revisions are designed to encourage the Democratic-controlled Senate to accept a Housepassed bill, thus avoiding the need for a conference committee. `We're trying to pre-conference with supporters of the bill, rather than going to conference with opponents,' Shays said.").
*fn24 The Speaker of the House picks the 9 majority-party members that serve on the powerful House Committee on Rules — the gateway to the House floor. The Rules Committee writes the rules that govern debate and determines which amendments will be considered. The committee currently consists of 13 members, 9 majority-party members chosen by the Speaker of the House and 4 minority-party members chosen by the House Minority Leader. See Walter J. Olsezek, Congressional Procedures and the Policy Process 119 (5th ed., CQ Press 2001).
*fn25 Members of a conference committee are formally appointed by the Speaker of House and the presiding officer of the Senate. Walter J. Oleszek, Congressional Procedures and the Policy Process 252-54 (5th ed., CQ Press 2001). In the House, after initial appointment, the Speaker retains the authority to add and remove members. Id. at 254. Although the House rules provide that the Speaker shall "appoint no less than a majority [of conferees] who generally supported the House position [on the legislation] as determined by the Speaker," Rules of the House of Representatives, 108th Cong. (2003) available at http://www.house.gov/rules/house_rules.htm, in practice, the Speaker is vested with significant discretion to ensure that the House delegates are amicable to the leadership's position. See Walter J. Oleszek, Congressional Procedures and the Policy Process 252-54 (5th ed., CQ Press 2001).
*fn26 This marked the first occasion in which Speaker J. Dennis Hastert lost a vote on a rule during his first two years as Speaker of the House. Karen Foerstel, A Bitter Day for the GOP, Congressional Quarterly Weekly (July 13, 2001).
*fn27 The Armey Substitute, Amendment 415, failed by a vote of 179-249. 148 Cong. Rec. H376-77 (daily ed. Feb. 13, 2002).
*fn28 The first Ney Substitute, Amendment 416, failed by a vote of 53-377. 148 Cong. Rec. H392 (daily ed. Feb. 13, 2002). The second Ney Substitute, Amendment 430, failed by a vote of 181-248. Id. at H464-65.
*fn29 The process of going to conference creates three additional hurdles to the enactment of legislation. First, the conferees must come to an agreement, and in addition, the Conference Report must pass both the House and the Senate. Moreover, the House and Senate Leadership appoint members to the conference committee and enjoy considerable discretion over its composition. See Walter J. Oleszek Congressional Procedures and the Policy Process 252-54 (5th ed., CQ Press 2001); see also supra note 25.
*fn30 The Shays Substitute, Amendment 417, also amended the title of the bill to its present form: the "Bipartisan Campaign Reform Act (BCRA) of 2002." 148 Cong. Rec. H393 (daily ed. Feb. 13, 2002).
*fn31 BCRA § 403(a)(1) states: "The action shall be filed in the United States District Court for the District of Columbia and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States Code."
*fn32 The plaintiffs did not disagree that some discovery was necessary:
JUDGE KOLLAR-KOTELLY: So, as I understand it, then,
everybody wants to do depositions, everybody wants to
do some exchange of expert reports, and everybody
wants to have some sort of lay statement, affidavits
or statements. Is that accurate? . . . If somebody
disagrees with that, let me know.