How McCain-Feingold Failed to Change American Politics

Critics Say Campaign-Finance Law Made Things Worse

U.S. Sens. John McCain, left, and Russ Feingold worked together to push through what was among the first significant campaign-finance reform measures in modern political history. U.S. Senate

The McCain-Feingold Act is one of the several federal laws that regulates the financing of political campaigns. It is named after its chief sponsors, Republican U.S. Sen. John McCain of Arizona and Democratic U.S. Sen. Russell Feingold of Wisconsin.

The law, which took effect in November 2002, was notable in that members of both political parties worked together to create what at the time was a groundbreaking effort to reform American politics. Since its passage, though, a number of court cases have chipped away at the heart of what McCain and Feingold were attempted to do: limit the influence of money on elections. 

The U.S. Supreme Court’s landmark decision in favor of the nonprofit corporation and conservative advocacy group Citizens United ruled that the federal government cannot limit corporations, unions, associations or individuals from spending money to influence the outcome of elections. The widely criticized ruling, along with another in the earlier case, is cited as leading to the creation of super PACs. The ominous-sounding dark money has started flowing into campaigns since McCain-Feingold, too.

What McCain-Feingold Meant to Do But Didn't

The primary objective of McCain-Feingold was the restore public trust in the political system by banning donations to political parties from wealthy individuals and corporations. But the legislation allowed people and corporations to give their money elsewhere, to independent and third-party groups.

Some critics claim McCain-Feingold made matters worse by shifting campaign cash from the political parties to outside, third-party groups, which are more extreme and narrowly focused. Writing in The Washington Post in 2014, Robert K. Kelner, chairman of the election law practice at Covington & Burling LLP, and Raymond La Raja, an associate professor of political science at the University of Massachusetts at Amherst:

"McCain-Feingold tilted influence in our political system toward the ideological extremes. For centuries, political parties played a moderating role: Because they comprise a broad coalition of interests, parties had to mediate among competing constituencies, looking for ­middle-ground positions that would draw maximum support. Traditionally, they used their preponderance of resources to impose discipline on extremists who threatened party comity.
But McCain-Feingold pushed soft money away from parties and toward interest groups, many of which prefer to focus on highly contentious issues (abortion, gun control, environmentalism). These are not necessarily the issues of greatest concern to most Americans, especially during difficult economic times. With the parties in retreat, is it any surprise that our national political debate has taken on a more extreme tone or that fewer moderates are elected?"

Anyone who's witnessed the billions of dollars spent on presidential campaigns in modern political history knows money's corrupting influence on is alive and well. It's also time to end the public financing of presidential campaigns in light of the court decisions.

About McCain-Feingold

The law, also known as the Bipartisan Campaign Reform Act, focused on these key areas:

  • Soft money in campaign financing
  • Issue ads and
  • Controversial campaign practices during the 1996 federal elections
  • Increasing political contribution limits for private individuals

The law was in development for a long time, first being introduced in 1995. It is the first major change in campaign finance law since the Federal Election Campaign Act of 1971.

Learn About McCain-Feingold

The House passed HR 2356 on 14 February 2002 by a vote of 240-189. The Senate concurred on 20 March 2002, by a vote of 60-40. From the Congressional Research Service:

Bipartisan Campaign Reform Act of 2002 

Title I: Reduction of Special Interest Influence 

Amends the Federal Election Campaign Act of 1971 (FECA) to prohibit:

  1. national political party committees (including any officer, agent, or entity they directly or indirectly establish, finance, maintain, or control) (officer, agent, or entity) from soliciting, receiving, directing, transferring, or spending money that is subject to FECA limitations, prohibitions, and reporting requirements;
  2. soft money spending (not currently subject to FECA) for a Federal election activity, in general, by State, district, and local political party committees (including any officer, agent, or entity) or by an association or similar group of candidates for State or local office or State or local officials;
  3. soft money spending for fundraising costs by any such committee, officer, agent, or entity;
  4. national, State, district, or local political party committees (including national political party congressional campaign committees, entities, officers, or agents) from soliciting, any funds for, or making or directing any donations to certain tax-exempt organizations; and
  5. candidates for Federal office, Federal office holders, or their agents from soliciting, receiving, directing, transferring, or spending funds in connection with a Federal election, including funds for any Federal election activity, unless they are subject to FECA limitations, prohibitions, and reporting requirements, or in connection with any non-Federal election unless such funds meet specified requirements.

    (Sec. 101) Prohibits any funds for soft money accounts from being solicited, received, directed, transferred, or spent in the name of national political parties, Federal candidates or officials, or by joint fundraising activities by two or more party committees.

    Defines Federal election activity to include:

    1. voter registration activity in the last 120 days of a Federal election;
    2. voter identification, get-out-the-vote, or generic campaign activity conducted in connection with an election in which a Federal candidate is on the ballot;
    3. public communications that refer to a clearly identified Federal candidate and promote, support, attack, or oppose a candidate for Federal office (regardless of whether they expressly advocate a vote for or against); or
    4. services by a State, district, or local political party employee who spends at least 25 percent of paid time per month on activities in connection with a Federal election.

    Defines generic campaign activity as a campaign activity that promotes a political party and does not promote a candidate or non-Federal candidate. Defines public communications as communications by means of any broadcast, cable, satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing (over 500 identical or substantially similar pieces mailed within any 30-day period), or phone bank (over 500 identical or substantially similar telephone calls made within any 30-day period) to the general public, or any other form of general public political advertising.

    (Sec. 102) Increases limit on individual contributions to a State committee of a political party from $5,000 to $10,000 per year.

    (Sec. 103) Codifies Federal Election Commission (FEC) regulations on disclosure of all national political party committee activity, both Federal and non-Federal.

    Requires disclosure by State and local parties of spending on Federal election activities, including any soft money permitted to be used for such activities.

    Terminates the building fund exception to the definition of contribution.

    Title II: Noncandidate Campaign Expenditures

    The House passed HR 2356 on 14 February 2002 by a vote of 240-189. The Senate concurred on 20 March 2002, by a vote of 60-40. From the Congressional Research Service:

    Bipartisan Campaign Reform Act of 2002 

    Title II: Noncandidate Campaign Expenditures 
    Subtitle A: Electioneering Communications 

    Amends FECA to require disclosure to the FEC of electioneering communications by any spender exceeding an aggregate of $10,000 per year in disbursements for them (including contracts to disburse), within 24 hours of each specified disbursement date (disclosure date).

    (Sec. 201) Requires such disclosure to include:

    1. identification of spender, of any person with control over the activities of such person, and of the custodian of the spender's books and accounts;
    2. the spender's principal place of business (if the spender is not an individual);
    3. A number of disbursements of over $200 and identification of recipient;
    4. the election and candidates to which communications pertain; and
    5. identification of all contributors of $1,000 or more (either to a separate segregated fund or, if none, to the spender).

    Defines electioneering communication as any broadcast, cable, or satellite communication that refers to a clearly identified Federal candidate, made within 60 days of a general, special, or runoff election, or within 30 days of a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office the candidate seeks, and, in the case of a communication that refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate. Provides an alternative definition of the term if the first definition is held to be constitutionally insufficient. Lists exceptions to the definition of electioneering communication. Provides that a communication that refers to a clearly identified candidate for Federal office is "targeted to the relevant electorate" if the communication can be received by 50,000 or more persons in the district the candidate seeks to represent, in the case of a candidate for Representative in, or Delegate or Resident Commissioner to, Congress or in the State the candidate seeks to represent, in the case of a candidate for Senator.

    Directs the Federal Communications Commission (FCC) to compile, maintain, and publicize on its website any information the FEC may require to carry out these requirements.

    (Sec. 202) Treats an electioneering communication that is coordinated with a candidate or an authorized committee of such candidate, a Federal, State, or local political party or committee thereof, or an agent or official of any such candidate, party, or committee as a contribution to, and expenditure by, such candidate or such party.

    (Sec. 203) Bans disbursements for electioneering communications from the union or certain corporate funds, except certain tax-exempt corporations making electioneering communications:

    1. paid for exclusively with funds provided directly by individuals who are citizens or permanent resident aliens; and
    2. which are not targeted electioneering communications.

    Subtitle B: Independent and Coordinated Expenditures - Amends FECA to define independent expenditure as an expenditure by a person expressly advocating the election or defeat of a clearly identified candidate, and that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidate's authorized political committee, or their agents, or a political party committee or its agents.

    (Sec. 212) Outlines reporting requirements for certain independent expenditures, including the time frame for filing reports with the FEC on independent expenditures aggregating $1,000 or more and $10,000 or more.

    (Sec. 213) Prohibits a committee of a political party from making both independent and coordinated expenditures for a general election candidate.

    (Sec. 214) Provides that expenditures made by any person (other than a candidate or candidate's authorized committee) in cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party, shall be considered to be contributions made to such party committee.

    Repeals current FEC regulations, and directs the FEC to promulgate new regulations on coordinated communications paid for by persons other than candidates, authorized committees of candidates, and party committees. Prohibits such regulations from requiring agreement or formal collaboration to establish coordination.

    Bipartisan Campaign Reform Act of 2002 

    Title III: Miscellaneous 
    Amends FECA to codify FEC regulations on permissible uses for contributions and donations, while retaining the ban on the conversion of a contribution or donation to personal use.

    (Sec. 302) Revises the ban under the Federal criminal code against solicitation or receipt of campaign contributions by Federal officials and from anyone located in any Federal government building used to discharge official duties. Extends the ban to:

    1. specify State and local as well as Federal elections, and
    2. cover soft money.

    (Sec. 303) Amends FECA to revise the ban on campaign contributions from foreign nationals to include donations, expenditures, independent expenditures, disbursements for an electioneering communication, as well as contributions or donations to any political party committee.

    (Sec. 304) Specifies formulae for increasing the limits on individual and political party committee contributions for a Senate candidate whose opponent exceeds the threshold level of spending from personal funds in the campaign, whose basic formula shall be $150,000 plus $0.04 times the voting age population. Limits repayment of a candidate's personal loans incurred in connection with his or her campaign to $250,000 from contributions made to the candidate or any authorized committee of the candidate after the election.

    (Sec. 305) Declares that a candidate for Federal office shall not be entitled to the lowest unit rate broadcast time unless he or she certifies to the broadcast station that the candidate (or any of his or her authorized committees) will not refer directly to another candidate for the same office unless a broadcast ad includes the candidate's photo or image on TV and a statement of the candidate's approval printed for display on TV and spoken by the candidate on radio.

    (Sec. 306) Amends FECA to require:

    1. the FEC to promulgate standards for and to provide standardized software for filing FEC reports electronically;
    2. candidates' use of such software; and
    3. the FEC to post any information received electronically on the Internet as soon as practicable.

    (Sec. 307) Raises:

    1. the limit on aggregate individual contributions to national political party committees from $20,000 to $25,000 per year;
    2. the limit on annual aggregate individual contributions to Federal candidates, political action committees (PACs), and parties from $25,000 to $37,500 in the case of contributions to candidates and the authorized committees of candidates, and to $57,500 in the case of any other contributions, of which not more than $37,500 may be attributable to contributions to political committees which are not political committees of national political parties during a specified period; and
    3. the special limit on combined contributions to Senate candidates by national and senatorial party committees $17,500 to $35,000 in year of election. Provides for indexing for inflation of limits on certain contributions and expenditures.

    (Sec. 308) Amends Federal law on presidential inaugural ceremonies to require disclosure to the FEC by Presidential Inaugural Committees of any donation made to them in an aggregate amount equal to or greater than $200. Bans foreign national donations to a Presidential Inaugural Committee. Directs the FEC to make any report filed by such a Committee accessible to the public at FEC offices and on the Internet.

    (Sec. 309) Amends FECA to prohibit fraudulent misrepresentation in the solicitation of campaign funds.

    (Sec. 310) Directs the Comptroller General to study and report to Congress on statistics for and effects of public financing (clean money clean elections) of the 2000 elections in Arizona and Maine.

    (Sec. 311) Amends FECA to require:

    1. sponsorship identification on all election-related advertising (including on electioneering communications) by the political committee or other person paying for the communication and the name of any connected organization of the payor; and
    2. enhanced visibility or other disclosure of such identification in the communication.

    (Sec. 312) Increases criminal penalties for knowing and willful violations involving:

    1. contributions, expenditures, or donations in amounts aggregating from $2,000 to $25,000 per year; and
    2. contributions, expenditures, or donations in amounts aggregating $25,000 or more per year.

    (Sec. 313) Changes from three to five years the statute of limitations for criminal violations of Federal election law.

    (Sec. 314) Directs the United States Sentencing Commission to promulgate penalty guidelines and to make legislative or administrative recommendations to Congress regarding enforcement of Federal election law.

    (Sec. 315) Imposes specific civil money and criminal penalties for knowing and willful violations of the ban on contributions made in the name of another person (conduit contribution ban)

    (Sec. 316) Provides that:

    1. for purposes of determining the aggregate amount of expenditures from a candidate's personal funds used in determining the opposition personal funds amount in Senate elections, such aggregate amount shall include the gross receipts advantage of the candidate's authorized committee; and
    2. the ban on contributions and donations from foreign nationals does not include U.S. nationals.

    (Sec. 318) Prohibits contributions to candidates and donations to political party committees by individuals age 17 or younger.

    (Sec. 319) Amends FECA to provide that if the opposition personal funds amount with respect to a candidate for election to Congress exceeds $350,000:

    1. the individual contribution limit with respect to the House of Representatives candidate shall be tripled (from $1,000 to $3,000);
    2. the aggregate annual individual contribution limit ($25,000) shall not apply with respect to any contribution made with respect to the candidate if the contribution is made under such increased limit; and
    3. the limits on any expenditure by a State or national committee of a political party on behalf of the candidate shall not apply.