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Neuborne Takes Campaign Financing Reform to the Supreme Court

Burt Neuborne is no mere observer of campaign finance issues. The founding legal director of the Brennan Center for Justice, he played an important role in the legal defense of the landmark McCain-Feingold campaign finance law. The 2002 law bans unlimited, “soft money” contributions to political parties and restricts political advertisements by unions, corporations and advocacy groups in the weeks leading up to elections.

In the mid-1990s, recalls Joshua Rosenkranz, then the director of the Brennan Center, Neuborne “had this instinct” that campaign finance reform would be the next hot development in election law. The center began developing ideas and positions, setting itself up as a kind of general counsel to the reform movement. A few years later, Rosenkranz was asked to join a small group of legal scholars who drafted what became the McCain-Feingold bill. He played the dominant role in writing the section on advocacy ads.

Neuborne remembers that as soon as the bill was introduced, it was attacked furiously from both the left and the right on First Amendment grounds. As the bill foundered, Senators John McCain and Russ Feingold had Neuborne hold a press conference to defend the measure. The strategy was: if Neuborne, a longtime, well-known fighter for the First Amendment and former legal director of the American Civil Liberties Union, would stake his reputation on the bill’s constitutionality, it’s got to have merit. Neuborne also rounded up 14 former ACLU executives to publicly support the measure as a means of neutralizing ACLU opposition. That maneuvering, he says, helped keep lawmakers on board, leading to passage.

When the law was challenged in court, the Brennan Center put together a team, led by Rosenkranz and including Neuborne and Brennan Senior Counsel Frederick A.O. Schwarz Jr., to defend the measure. Their assignment was specifically the section on electioneering. They commissioned studies on election ads and tracked campaign contributions from big donors to build the argument that the old law was corrupt, allowing phony issue ads to creep in that were really aimed at altering the outcome of the election.

Citing the gritty evidence of campaign finance end-runs and loopholes, the Supreme Court upheld the law in McConnell v. FEC in a 5-4 decision in December 2003. Says Neuborne, “The case was won not at the level of brilliant theoretical arguments, but what we did is build a record that made it impossible to overturn.” As for the law’s impact, he insists it’s been a total success in eliminating corporate money from political campaigns. In 2007, however, the Court seemed to gut the segment on electioneering by allowing certain ads from interest groups. The 5-4 decision in FEC v. Wisconsin Right to Life was seen as rebuke of McCain-Feingold.

Neuborne remains optimistic: “What I thought was a real defeat doesn’t appear to be playing out on the ground that way,” he says, explaining that the unions, corporations and advocacy groups the electioneering passages specifically targeted don’t seem to be using the Court’s decision as a loophole. “The truth is [the 2007 decision] is a useful safety valve that allows small groups that really are talking about issues to get an exemption and not have to worry about violating the Act,” Neuborne explains. But he cautions only time will tell whether this remains true.