FECA vs McCain-Feingold is the comparison that organizes modern American campaign finance law, because nearly every argument in the field is an argument about which of the two statutes understood the problem correctly. A student meeting the subject for the first time encounters two names and a shelf of cases and has to learn which law did what. A legislative staffer drafting a new proposal has to know which of the two designs the courts have permitted to operate and which they have dismantled. A journalist explaining a super PAC or a party account has to trace the money back through both statutes to say anything accurate about how it got there. The comparison is not a trivia question about dates. It is the field’s working map.

The earlier statute is the Federal Election Campaign Act of 1971, Public Law 92-225, signed on February 7, 1972. Standing alone, the 1971 act tightened disclosure and limited media spending. The statute that governs the field is that act as Congress rebuilt it in the Federal Election Campaign Act Amendments of 1974, Public Law 93-443, which imposed contribution limits and expenditure ceilings, created the Federal Election Commission, and built a system of public financing for presidential elections, and as Congress adjusted it again in the amendments of 1979, Public Law 96-187. The later statute is the Bipartisan Campaign Reform Act of 2002, Public Law 107-155, signed on March 27, 2002, with its core provisions in force from November 6, 2002. It did not replace the earlier act. It amended it, layering a second regulatory design on top of the first, which is why the two are so often confused and why the comparison has to be drawn structurally rather than chronologically.

The structural difference can be stated in one sentence before the evidence is laid out. The earlier statute regulated what flows into candidates and parties: contributions, campaign spending, and the disclosure of both. The later statute regulated what flows around them: the unrestricted funds national parties had learned to raise outside the federal limits, and the corporate and union treasury money paying for broadcast advertising that named candidates without passing through any campaign. Each statute closed a channel the preceding order had left open. Each was followed by the growth of a new channel outside its reach. And each met the courts, which sustained the parts of both statutes that regulated contributions and disclosure and struck the parts of both that restricted independent spending. The four axes of the comparison, target, institutions, judicial fate, and consequence, are the four places where that pattern can be verified rather than merely asserted.

Two Statutes, Two Theories of the Same Problem

A comparison between the Federal Election Campaign Act and the Bipartisan Campaign Reform Act of 2002 begins with a difference in aim. The earlier statute built a regulatory system around the formal participants in federal elections. It set terms for the money that reached candidates, for the committees that supported candidates, and for the spending and reporting inside that recognized structure. The later statute accepted much of that structure and directed attention beyond its edges, toward money that moved around the formal apparatus, through party accounts outside federal limits and through broadcast advertising that named a candidate without passing through a campaign.

That difference did not arise at once. The Federal Election Campaign Act of 1971, Public Law 92-225, signed on February 7, 1972, by President Nixon, tightened disclosure, limited media spending, and capped some contributions. The original act gave the comparison its starting point in the Federal Election Campaign Act of 1971, but the comprehensive system that later legislators amended came from the Federal Election Campaign Act Amendments of 1974, Public Law 93-443, signed on October 15, 1974. Between 1971 and 1974, the center of gravity shifted from restrictions attached to particular practices toward an architecture meant to govern the whole flow of money through federal campaigns.

What did the Federal Election Campaign Act actually regulate?

The Federal Election Campaign Act regulated money entering the formal campaign system: contributions to candidates, party committees, and political action committees, spending by campaigns themselves, and disclosure and recordkeeping by those entities, under limits and reporting rules administered by the Federal Election Commission created in the amendments of 1974.

The first element was the contribution. Under the system constructed in 1974, an individual contribution to a candidate was limited to 1,000 dollars per candidate per election. The figure was a ceiling on a defined act, the giving of money to a candidate for an election, and the definition did as much work as the figure itself. By naming the recipient and the occasion, the statute made the contribution a measurable event that could be counted, aggregated, and tested against a limit. Party committees and political action committees stood inside the same regulated field, as conduits and as recipients in their own right, and money that entered through a committee did not escape the system by changing hands within it.

The treatment of committees reflected how campaigns functioned in practice. A candidate rarely raised or spent in isolation. A party committee could support a slate and sustain activity between elections, and a political action committee could gather contributions from many individuals and direct the pooled amount toward chosen candidates. A scheme governing only the candidate would have left the principal channels of organized support untouched, so the 1974 amendments placed the committees inside the perimeter, defined by function and by relationship to a federal election. That choice also created a boundary problem, since any perimeter invited the question of what fell outside its definitions.

The second element was spending by campaigns themselves. The 1974 amendments imposed expenditure ceilings alongside the contribution limits, governing both the amount a campaign could receive from a single source and the amount a campaign could spend in total. The Supreme Court separated the two halves of that pairing in Buckley v. Valeo, 424 U.S. 1, decided on January 30, 1976, roughly fifteen months after the 1974 amendments. The Court sustained the contribution limits and struck the candidate expenditure ceilings. The Court also struck the 1,000 dollar ceiling on independent expenditures and the limits on a candidate’s use of personal funds. The contribution and expenditure distinction drawn there governed everything after, leaving the system with a firm grip on money given to campaigns and a far weaker grip on money spent apart from campaigns.

The third element was disclosure. The 1974 system included disclosure and recordkeeping provisions, and the Supreme Court sustained those provisions in Buckley v. Valeo alongside the contribution limits. Disclosure performed a different function from a ceiling. A ceiling prohibited a transaction above a stated amount. Disclosure made a permitted transaction visible, by requiring the entities inside the system to report what had been received and what had been spent. Visibility served enforcement, since a limit without a record of the underlying transactions would have depended on voluntary compliance by the actors the limit constrained.

Administration belonged to a new institution. The 1974 amendments created the Federal Election Commission, the body that received the reports, applied the definitions, and enforced the limits. The Commission had six commissioners, with no more than three from one political party, and four affirmative votes were required at the decisive enforcement stages. Accounts of the institution have carried two readings of that even division, as a source of deadlock on contested questions or as protection against enforcement directed by one party against the other. The appointment method for the original Commission did not survive. In Buckley v. Valeo, the Court struck the method on the ground that members appointed by Congress were exercising executive functions, and the Federal Election Campaign Act Amendments of 1976, Public Law 94-283, reconstituted the Commission in response.

The 1974 amendments also built a system of public financing for presidential elections. The one dollar tax checkoff and the Presidential Election Campaign Fund were created by the Revenue Act of 1971, Public Law 92-178, through a floor amendment carried by Senator Pastore. The fund therefore preceded the comprehensive amendments and did not originate in the Federal Election Campaign Act. What the 1974 amendments constructed was the payment system that drew on that fund, providing matching payments for presidential primaries, full grants for the general election, and grants for nominating conventions. The first financed cycle was the election of 1976. Public payments offered a substitute for the private money restricted at the point of entry, for candidates who accepted the attached conditions.

Later amendments showed how much depended on the definitions at the perimeter. The Federal Election Campaign Act Amendments of 1979, Public Law 96-187, signed on January 8, 1980, placed grassroots and party building spending by state and local party committees outside the statutory definitions of contribution and expenditure. A payment outside those definitions fell outside the limits and reporting structure the definitions supported, and that exclusion became the soft money opening. Commission allocation rules of the early 1990s then allowed national parties to pay shared costs partly from nonfederal accounts, and the amounts grew across successive cycles until the channel carried hundreds of millions of dollars in a single election year. A system organized around defined transactions inside a formal apparatus left the classification of each flow as the decisive legal question.

The Bipartisan Campaign Reform Act entered that setting as a statute written against a specific history of evasion. The act, Public Law 107-155, 116 Stat. 81, was signed on March 27, 2002, and its core provisions took effect on November 6, 2002, the day after the general election of that year. The Senate sponsors were John McCain, a Republican, and Russell Feingold, a Democrat. The House counterparts were Christopher Shays, a Republican, and Marty Meehan, a Democrat. The House passed the measure on February 14, 2002, by a vote of 240 to 189, and the Senate passed the measure on March 20, 2002, by a vote of 60 to 40.

Title I took aim at the soft money channel directly. National party committees were prohibited from soliciting, receiving, or spending soft money. The prohibition attached to the committees at the top of the party structure, the entities whose nonfederal accounts had carried the largest share of the growth recorded from 1988 to 2000. Rather than redefining the contribution a national party could accept for a stated purpose, Title I barred the national committees from handling funds outside federal limits altogether. Solicitation was covered alongside receipt and spending. For state and local party committees, the treatment was narrower. Those committees were restricted in using such funds for federal election activity, with an exception associated with Senator Levin that allowed certain activity financed with funds raised under state law within limits.

Title II addressed a different channel, the broadcast advertisement that named a candidate shortly before an election without being coordinated with or paid for by a campaign. The statute used the category of electioneering communications, defined by medium, content, timing, and audience. The medium was broadcast, cable, or satellite. The content was a reference to a federal candidate. The timing was a window of 30 days before a primary election or 60 days before a general election. The audience was the relevant electorate. A communication meeting those conditions could not be paid for from corporate or union treasury funds. Disclosure was also required for electioneering communications, extending the reporting principle of the earlier statute to spending that had developed outside the older definitions.

The target of Title II was defined by circumstance rather than by the declared purpose of the speaker. An advertisement financed from a corporate treasury could avoid the older law by omitting words of express advocacy, by praising or condemning a candidate’s record without instructing voters to elect or defeat that candidate. A definition tied to the naming of a candidate within a fixed period before an election closed that avoidance, at the cost of reaching communications whose sponsors described them as commentary on public issues. That cost became the center of the constitutional dispute over Title II. Reform organizations and the sponsoring members presented the criteria as the only workable way to reach advertising that functioned as campaign communication while voters were deciding. Litigants challenging the provision, and speakers whose advertisements fell inside the windows, presented the same criteria as a burden on discussion of public questions involving officeholders who were also candidates.

The two titles also differed from each other in the precision of their aim, and the difference shows what target selection required under the later design. Title I defined its object by the identity of the holder and the character of the account: funds a national party committee raised outside the federal source and amount limits, whatever the stated purpose of the spending. Title II defined its object by the circumstances of the communication rather than by the identity of the spender alone: the medium of broadcast, cable, or satellite transmission, a reference to a federal candidate, a window of thirty days before a primary or sixty days before a general election, and an audience consisting of the relevant electorate. A communication that met every condition fell inside the prohibition on treasury funding; a communication missing any one condition fell outside it. That circumstantial drafting was itself a targeting decision, an attempt to reach the advertising that functioned as campaign communication during the period when voters were deciding, without writing a rule for political speech in general. The earlier statute had defined its objects by transaction type, contribution, expenditure, and disbursement, and had left the classification of each flow as the decisive legal question. The later statute kept those transaction definitions and added a situational definition on top of them, aimed at a flow the transaction definitions had not captured.

Alongside the two prohibitory titles, the Bipartisan Campaign Reform Act adjusted the regulated system itself, in ways that complicate any account treating the statute as purely restrictive. The act raised the individual contribution limit from 1,000 dollars to 2,000 dollars and indexed the limit to inflation. The first indexed adjustment set the limit at 2,100 dollars. The increase acknowledged that the figure established in 1974 had governed for more than a quarter of a century without adjustment. Raising the ceiling on lawful contributions while prohibiting the unregulated alternative was a paired decision. The statute narrowed the space outside the formal apparatus and widened, by a measured amount, the space inside it.

Two further provisions addressed campaigns from inside the regulated system. Section 311 imposed the stand by your ad disclaimer requirement, under which a candidate’s authorization of an advertisement became part of the advertisement itself, attaching the candidate’s name and responsibility to the message voters received. The disclaimer operated at the moment of communication, in the advertisement as broadcast, placing identification of the sponsor with the message itself rather than in a filing separated from the audience. The act also included the provision known as the Millionaire’s Amendment, which raised contribution limits for candidates facing self funded opponents. That provision responded to a gap left by Buckley v. Valeo, in which the Court had struck limits on a candidate’s use of personal funds. A candidate financing a campaign from personal wealth faced no ceiling, while an opposing candidate depended on contributions capped by law, and raising the caps for the opposing candidate was the statutory answer.

No new institution accompanied these provisions. The Bipartisan Campaign Reform Act created no agency, no board, and no new enforcement body. The rules were administered by the existing Federal Election Commission and enforced through the existing courts, and the act included an expedited judicial review provision under which the litigation in McConnell v. Federal Election Commission proceeded.

That statutory form supplies the terms of the comparison, because the Bipartisan Campaign Reform Act amended the Federal Election Campaign Act rather than replacing it. The later statute was a layer on the earlier statute’s architecture. The contribution limits the act adjusted remained the contribution limits of the amended act. The Commission administering the new prohibitions was the Commission the earlier amendments had created. The Bipartisan Campaign Reform Act presupposed the Federal Election Campaign Act at every point, including the points at which the later statute repudiated the practical consequences of the earlier definitions. The soft money prohibition made sense only against a system in which federal and nonfederal accounts existed side by side, and the electioneering communication provisions made sense only against a disclosure regime that had attached to a narrower class of communications.

The comparison is therefore a comparison of theories about the location of danger in campaign finance. Under the theory embodied in the 1974 amendments, the danger sat at the point of arrival. A large contribution to a candidate created the risk that the officeholder would repay the contributor with access, consideration, or action, and the statutory response was to cap the contribution, record it, and police the transaction through a commission. Money a campaign received was the object of regulation because the relationship between giver and recipient was the relationship the law sought to discipline. The judicial removal of the expenditure ceilings in Buckley v. Valeo left the arrival point as the durable center of the system.

Under the theory embodied in the Bipartisan Campaign Reform Act, the danger sat in movement outside the control of candidates and outside the discipline of the regulated system. Soft money reached party committees without passing the contribution limits, and its scale by the 2000 cycle, by then measured in hundreds of millions of dollars in a single cycle, rivaled the regulated flows it paralleled. Electioneering communications reached voters without passing through a campaign, financed from treasuries that the contribution rules did not govern as sources. A contributor barred from giving more than the limit to a candidate could give without a federal limit to a national party account. A corporation barred from contributing treasury funds to a candidate could spend treasury funds on broadcast advertising naming the candidate in the weeks before the election. The later statute treated those substitutions as the problem itself, as the same influence traveling by a route that carried no limit and, for much electioneering spending before 2002, a far lighter disclosure burden.

The two theories were not simple opposites, and the statutes were not simple opposites either. The Bipartisan Campaign Reform Act raised the contribution limit at the center of the earlier system, a concession that the regulated channel had to remain capable of financing campaigns if the unregulated channels were closed. The Federal Election Campaign Act had never confined attention to the candidate’s own account, since party committees and political action committees stood inside its perimeter from 1974 onward. Each statute therefore contained an element of the other’s theory. The difference lay in emphasis and in the direction of extension. The earlier statute extended regulation outward from the candidate to the committees serving the candidate. The later statute extended regulation outward from the committees to the accounts and advertisements serving the same electoral purposes without entering the committees’ federal structure. The perimeter moved, and the movement of the perimeter is the clearest measure of how the understanding of the problem changed between 1974 and 2002.

The judicial record preserved the distinction rather than erasing it. The expenditure ceilings of 1974 fell within roughly fifteen months of enactment, when Buckley v. Valeo was decided in January 1976, while the contribution limits and disclosure provisions of the same amendments were sustained. The soft money prohibition of Title I, the central prohibition of the later statute, was upheld against facial challenge in McConnell v. Federal Election Commission, 540 U.S. 93, decided on December 10, 2003, and Title I has never been struck. Provisions aimed at money arriving at candidates endured from 1974 forward, and the provision aimed at money moving through party accounts outside federal limits endured from 2002 forward. Provisions aimed at spending itself, whether campaign expenditure ceilings in 1974 or treasury funded electioneering communications in 2002, met the strongest judicial resistance.

Two statutes joined in a single amended text thus offer two answers to the question of where political money becomes a problem for democratic government. The first answer pointed to the moment a contribution reached a candidate and built limits, disclosure, an enforcement commission, and a public financing alternative around that moment. The second answer pointed to the routes by which money avoided that moment altogether and built prohibitions around party accounts and pre election broadcast advertising, while enlarging the lawful contribution the first answer had capped. Neither answer displaced the other. The amended act resulting from the layering of 2002 over 1974 contained both, and any judgment about the relative success of the two approaches has to reckon with a text in which the route around the system and the transaction at the center of the system were governed, in the end, by the same statute.

The Four-Axis Comparison Table

The table below compresses the comparison into the four axes the rest of the article examines in prose. Each cell states the operative fact and its date, so the table can be read on its own as the comparison in miniature.

Axis	Federal Election Campaign Act (Public Law 92-225, as amended in 1974 and 1979)	Bipartisan Campaign Reform Act (Public Law 107-155, 2002)
Target	Contributions into candidates, party committees, and political action committees; campaign spending; disclosure by those entities. Comprehensive form in the amendments of 1974.	Funds flowing around the regulated apparatus: national party soft money under Title I; corporate and union treasury funding of pre-election broadcast advertising under Title II.
Institutions created	The Federal Election Commission in 1974, and the presidential public financing payment system built in 1974 on the fund and checkoff created by the Revenue Act of 1971.	None. Its rules were administered by the commission the earlier statute created and tested through expedited judicial review.
Judicial fate	Buckley v. Valeo in 1976, within two years: contribution limits, disclosure, and public financing sustained; expenditure ceilings, the independent expenditure ceiling, and personal funds limits struck.	McConnell in 2003 sustained both titles; Wisconsin Right to Life in 2007 narrowed the advertising title as applied; Citizens United in 2010, eight years after enactment, struck the advertising prohibition and upheld disclosure by eight votes to one, Justice Thomas alone dissenting on that part; the soft money prohibition was never struck.
Subsequent channel	Party soft money, opened by the definitional exclusion of the 1979 amendments and enlarged by allocation rules: about 45 million dollars in 1988, about 262 million in 1996, about 495 million in 2000.	Independent organizations: 527 organizations took roughly 405 million dollars in receipts in the 2004 cycle; super PACs and nonprofit election spending grew after the decisions of 2010.

The Institution Axis: What Each Statute Built

A comparison of the Federal Election Campaign Act and the Bipartisan Campaign Reform Act can proceed along several axes, and the institutional axis separates the two statutes most cleanly at the level of construction. One statute built durable machinery and placed rules inside that machinery. The other statute wrote rules and placed them inside machinery that already existed. Beneath the surface, however, the distinction shaped everything that followed, because a rule has no life separate from the body that administers it, the fund that finances the alternative it offers, and the court that decides whether it survives. When later litigation narrowed or destroyed particular provisions, the institutional question determined what remained standing after the judicial work ended.

The Federal Election Campaign Act began as the Federal Election Campaign Act of 1971, Public Law 92-225, signed February 7, 1972, by President Nixon, a statute that tightened disclosure, limited media spending, and capped some contributions. The comprehensive system associated with the act arrived later, through the Federal Election Campaign Act Amendments of 1974, Public Law 93-443, signed October 15, 1974. Those amendments imposed an individual contribution limit of 1,000 dollars per candidate per election, set expenditure ceilings, created the Federal Election Commission, and built the presidential public financing payment system. The sequence matters for the institution axis. The 1971 act regulated conduct within a landscape that had no single federal commission devoted to campaign finance administration. The 1974 amendments changed the landscape itself by constructing a permanent administrator and a permanent financing mechanism, and then by assigning the new rules to that administrator and that mechanism.

The Federal Election Commission was the central institutional creation of the 1974 amendments. The commission has six commissioners, and the statute provided that no more than three commissioners may belong to one political party. The commission operates under a further structural rule that four affirmative votes are required at the decisive enforcement stages. A six member body divided evenly at its maximum partisan allowance has no built in majority of one party, and a requirement of four affirmative votes means that action at the decisive stages needs support beyond a bare half of the membership. Enforcement under such a structure depends on agreement that crosses the partisan line built into the appointment limit, because three commissioners aligned together cannot supply four votes alone. The structure also means that disagreement between evenly divided blocs carries a particular weight, since a three to three division falls short of the threshold that decisive action requires.

The even division at the heart of the commission design has carried two contested readings, and the record presents both as contested ground rather than as a settled judgment. In one reading, the even division is a design producing deadlock on contested questions, a structure that predictably stalls when the questions before the commission divide along the same partisan lines as the membership itself, leaving enforcement incomplete precisely where the underlying conduct is most disputed. In the other reading, the even division is a protection against one party enforcement, a safeguard that prevents a commission from becoming an instrument through which one political party polices the campaign activity of the other, and that requires a measure of cross partisan agreement before the coercive power of the federal government is brought to bear on campaign conduct. The comparison carries both readings exactly as contested positions and adopts neither. The first reading treats the four vote threshold and the three member partisan cap as a recipe for inaction on hard cases. The second reading treats the same threshold and the same cap as a deliberate restraint on partisan use of enforcement power. The structural facts do not change between the readings.

The second institution building project of the 1974 amendments was the presidential public financing payment system, and precision about its origins matters because the payment system rested on a foundation that the Federal Election Campaign Act did not itself create. The one dollar tax checkoff and the Presidential Election Campaign Fund were created by the Revenue Act of 1971, Public Law 92-178, through a floor amendment carried by Senator Pastore. The checkoff and the fund therefore predated the comprehensive amendments, and neither should be attributed to the Federal Election Campaign Act. What the 1974 amendments built was the payment system that operated on that fund. The payment system existed as an operating program because the 1974 amendments defined the payments that the fund would support and the stages of a presidential campaign at which those payments would be made.

The payment system that the 1974 amendments constructed had three components, each attached to a different stage of the presidential selection and election process. The system provided matching payments for presidential primaries, full grants for the general election, and grants for nominating conventions. The architecture covered the full course of a presidential campaign as the statute conceived it, from the contests that select a nominee, through the convention that formalizes the nomination, to the general election campaign that follows. The first financed cycle was the cycle of 1976, which placed the operation of the payment system in the same year that the Supreme Court decided the first great test of the 1974 amendments.

The later history of the payment system shows an institution outliving the willingness of its intended beneficiaries to use it, a different kind of institutional fate from destruction by a court. George W. Bush in 2000 became the first major party nominee to decline primary matching funds. In 2004 both nominees declined primary matching funds while accepting general election grants. In 2008 Barack Obama became the first major party nominee to decline the general election grant entirely, in a cycle when the general election grant was 84.1 million dollars and John McCain accepted it. In 2012 no major candidate accepted public funds for the primary or the general election. Checkoff participation declined for decades from its early peak, a decline the record describes qualitatively. The Gabriella Miller Kids First Research Act, Public Law 113-94, signed April 3, 2014, terminated the parties’ entitlement to payments from the fund for nominating conventions, redirecting the amounts to pediatric research.

Between construction and decline came repair, and the repair episode of 1976 is the second element of the institution axis. The Supreme Court decided Buckley v. Valeo, 424 U.S. 1 (1976), on January 30, 1976, per curiam, roughly fifteen months after the 1974 amendments. The decision divided the 1974 system into parts that survived and parts that fell. The Court sustained the contribution limits, the disclosure and recordkeeping provisions, and public financing. The Court struck the candidate expenditure ceilings, the 1,000 dollar ceiling on independent expenditures, and the limits on a candidate’s use of personal funds. Alongside those rulings on money and speech, the Court struck the commission appointment method, on the ground that members appointed by Congress were exercising executive functions. The struck expenditure ceilings were rules, and their loss removed rules from the statute books. The struck appointment method was a defect in the construction of an institution, and its loss threatened the institution itself unless Congress rebuilt the appointment structure on a constitutionally permissible foundation.

Congress answered with the Federal Election Campaign Act Amendments of 1976, Public Law 94-283, which reconstituted the commission after Buckley v. Valeo struck its appointment structure. The 1976 amendments therefore functioned as institutional repair rather than as a new round of institution building. No second commission replaced the first as a rival body, and no alternative administrator took over the tasks that the 1974 amendments had assigned. The same institution, reconstituted, continued as the administrator of the campaign finance system, with its composition rule and its voting threshold carried forward as the structural facts described earlier in this section. The contribution and expenditure distinction drawn in Buckley v. Valeo governed everything after, in the sense that later legislatures wrote rules and later courts judged rules against that distinction, but the institutional setting in which those later contests occurred was the setting that the amendments of 1974 had built and the amendments of 1976 had repaired.

The contrast with the Bipartisan Campaign Reform Act of 2002 begins at the level of statutory form. The Bipartisan Campaign Reform Act, Public Law 107-155, 116 Stat. 81, signed March 27, 2002, amended the Federal Election Campaign Act. The act did not replace the Federal Election Campaign Act, and its core provisions took effect November 6, 2002, the day after the general election of that year. Its sponsors were Senators John McCain, a Republican, and Russell Feingold, a Democrat, with House counterparts Christopher Shays, a Republican, and Marty Meehan, a Democrat. The House passage vote on February 14, 2002, was 240 to 189, and the Senate passage vote on March 20, 2002, was 60 to 40. The Bipartisan Campaign Reform Act entered a landscape that already contained a campaign finance commission, a presidential financing fund, a payment system, and a line of judicial precedent running from Buckley v. Valeo forward. The act changed the rules that operated inside that landscape, in several instances profoundly, while adding no new structure to the landscape itself.

Did the Bipartisan Campaign Reform Act create any new institution?

No. The Bipartisan Campaign Reform Act of 2002 created no new agency, no new fund, and no new court. Its prohibitions and disclosure duties were administered by the Federal Election Commission and reviewed by the federal courts that existed before its enactment.

Title I prohibited national party committees from soliciting, receiving, or spending soft money, and restricted state and local parties in using such funds for federal election activity, with the Levin amendment exception allowing certain activity with funds raised under state law within limits. Title II addressed electioneering communications, defined as broadcast, cable, or satellite communications naming a federal candidate within 30 days of a primary or 60 days of a general election and aimed at the relevant electorate, and provided that such communications could not be paid for from corporate or union treasury funds, with disclosure required for electioneering communications. The act also raised the individual contribution limit from 1,000 dollars to 2,000 dollars and indexed the limit to inflation, producing 2,100 dollars in the first indexed adjustment, and included the Millionaire’s Amendment raising limits for candidates facing self funded opponents, alongside a disclaimer requirement in section 311. Every item in that inventory is a rule about conduct, a threshold, a prohibition, a definition, or a disclosure duty. None of the items creates a body to administer the act, a fund to finance an alternative, or a tribunal to judge disputes under it, because the act assigned each of those functions to structures that the Federal Election Campaign Act and the broader federal system had already supplied.

Administration of the Bipartisan Campaign Reform Act therefore ran through the Federal Election Commission from the first day the core provisions took effect. The commission that received the new soft money prohibition and the new electioneering communication rules was the commission that the 1974 amendments had created and the 1976 amendments had reconstituted, operating with six commissioners, no more than three from one political party, and a requirement of four affirmative votes at the decisive enforcement stages. A central regulatory question arising under the post 2002 order, whether organizations registered under section 527 of the Internal Revenue Code would be regulated as political committees, was decided, or deferred, by the inherited commission under its inherited voting structure, because the Bipartisan Campaign Reform Act had built no other body to decide it. The commission also lost its quorum between August 2019 and December 2020, and that loss of quorum befell the same inherited institution on which the administration of the 2002 rules depended.

Judicial testing of the Bipartisan Campaign Reform Act likewise ran through existing courts, structured by an expedited judicial review provision under which McConnell v. Federal Election Commission was litigated. In McConnell v. Federal Election Commission, 540 U.S. 93 (2003), decided December 10, 2003, the Supreme Court upheld Title I and Title II against facial challenge. The act created no court, no panel, and no specialized tribunal. The judgment that sustained the soft money prohibition and the electioneering communication provisions came from the Supreme Court, applying the contribution and expenditure framework that Buckley v. Valeo had established decades earlier, in litigation conducted through the federal judiciary that predated the act by generations. In Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449 (2007), the Court narrowed Title II as applied, holding that an advertisement is the functional equivalent of express advocacy only if the advertisement is susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate. In Davis v. Federal Election Commission, 554 U.S. 724 (2008), the Court struck the Millionaire’s Amendment. In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), decided January 21, 2010, eight years after enactment, the Court struck, by five votes to four, the prohibition on corporate and union treasury funding of electioneering communications and independent expenditures, overruling Austin and the relevant part of McConnell, while upholding the disclosure and disclaimer requirements by eight votes to one, with Justice Thomas alone dissenting on that part. Each decision altered the content of the rules that the commission administered, and none of them altered the identity of the administering institution or the reviewing court, because the act had made no institution whose fate could diverge from the fate of its rules.

The institutions that the Federal Election Campaign Act built outlasted several of the rules that the same statutory project enacted. The expenditure ceilings of 1974 fell in Buckley v. Valeo in 1976, within roughly fifteen months of enactment, while the commission whose appointment method fell in the same decision was reconstituted in the same year and continued as the administrator of the system. The payment system built in 1974 financed its first cycle in 1976 and remained the statutory route for presidential public financing through cycles in which candidates accepted its grants, cycles in which candidates declined portions of its support, and the cycle of 2012, in which no major candidate accepted public funds for the primary or the general election, before the convention payment entitlement ended by statute in 2014. A rule can be struck in a single decision. An institution, by contrast, can be repaired after a constitutional defect, can administer a shrinking program, can lose a quorum for an interval between August 2019 and December 2020, and can remain the body to which later statutes assign new duties, because institutional existence does not depend on the survival of any one rule the institution administers.

The rules of the Bipartisan Campaign Reform Act rose and fell inside institutions that the act did not create, and the descriptive record of their fate makes the contrast concrete. The soft money prohibition of Title I has never been struck, and national party soft money did not return under the prohibition, a durability that belongs to a rule rather than to any structure the act built. The electioneering communication prohibition was upheld in McConnell v. Federal Election Commission in 2003, narrowed as applied in Federal Election Commission v. Wisconsin Right to Life in 2007, and struck in its treasury funding prohibition in Citizens United v. Federal Election Commission in 2010, while the disclosure and disclaimer requirements survived the 2010 decision by eight votes to one, Justice Thomas alone dissenting on that part. The Millionaire’s Amendment fell in Davis v. Federal Election Commission in 2008. The institution axis therefore ends in an asymmetry that the record supports on both sides. The Federal Election Campaign Act left behind structures that survived the loss of several of its own most prominent rules. The Bipartisan Campaign Reform Act left behind rules whose survival or defeat was decided entirely within structures built by an earlier generation of legislators, and the act itself added no structure to the landscape that its rules inhabited.

The Judicial Fate of the Earlier Statute

The Federal Election Campaign Act Amendments of 1974 built a comprehensive system for federal elections in a single enactment, and that system met its constitutional test with unusual speed. The amendments were signed on October 15, 1974, as Public Law 93-443. They set an individual contribution limit of 1,000 dollars per candidate per election, imposed expenditure ceilings, created the Federal Election Commission, and built a presidential public financing payment system on the Presidential Election Campaign Fund. A structure of that breadth invited challenge from several directions at once, because it regulated the giving of money, the spending of money, the reporting of money, the administration of election law, and the public funding of presidential campaigns. Each element rested on a different constitutional footing, and the litigation that followed separated those elements from one another with lasting consequences for every campaign finance statute enacted afterward.

Buckley v. Valeo, 424 U.S. 1 (1976), was decided on January 30, 1976, within two years of the amendments and roughly fifteen months after enactment. The decision arrived as a per curiam ruling, a form that presented the judgment as the judgment of the Court as an institution rather than as the signed work of a single justice. The speed of the ruling mattered as much as its content. The first presidential election cycle conducted under the 1974 system was the 1976 cycle, the same cycle in which public financing was first used. Candidates, contributors, parties, and the new Commission therefore had to organize their conduct for that cycle under a legal framework whose central provisions had already been sorted into those that could operate and those that could not. The 1974 Congress had legislated as though contribution limits and expenditure limits formed a single regulatory whole. The Court treated them as distinct questions, and the distinction became the organizing fact of federal campaign finance law.

The challenge reached the whole architecture rather than a single provision in isolation. Contribution limits governed the amount a person could give directly to a candidate. Expenditure ceilings governed the amount a campaign could spend in seeking office. A separate ceiling limited independent expenditures, meaning spending made independently of a candidate. Another provision limited the personal funds a candidate could devote to a campaign for federal office. Disclosure and recordkeeping provisions required the reporting and documentation of campaign money. Public financing offered payments to eligible presidential candidates under conditions set by statute. The appointment structure determined who selected the members of the Commission that administered the system.

What did Buckley v. Valeo leave standing?

Buckley v. Valeo left standing the contribution limits, the disclosure and recordkeeping provisions, and the presidential public financing system built on the fund created in 1971, while striking expenditure ceilings and the appointment method that had placed congressionally appointed members in executive roles within the new Federal Election Commission.

The survival of the contribution limits rested on a particular understanding of what a contribution is and what a limit on contributions does to expression. A contribution, in the reasoning the Court adopted, functions as a general expression of support for a candidate and for the views the candidate represents. The act of giving carries symbolic meaning, yet the amount given does not by itself communicate a proportional amount of additional expression. A limit on the size of a contribution therefore leaves the symbolic act intact. A contributor remained free to volunteer time, to speak independently, to associate with a campaign, and to support a candidate in ways other than an enlarged check. The Court treated the burden on expression as real but lesser, because the restriction regulated the size of a financial transfer rather than forbidding communication itself.

Against that lesser burden, the Court placed a governmental interest it described in terms of corruption and the appearance of corruption. Large contributions to a candidate create a risk that officeholders will feel obliged to repay financial support through official action, and they create a public perception that access and influence can be purchased through money delivered directly to a campaign. The contribution limit addressed that risk at the point where money passes from a supporter into the hands of a candidate and the candidate committee. The reasoning tied the regulation to the danger of an exchange, or of a relationship that reasonable observers could understand as an exchange, rather than to a general desire to equalize resources among competitors. That grounding mattered. It allowed limits aimed at the transaction between contributor and candidate while withholding approval from limits aimed at the total volume of campaign speech.

Disclosure and recordkeeping survived under a related but distinct rationale. Those provisions did not cap the amount a person could give or spend. They required that campaign money be documented and reported, so that the source and scale of financial support entered the public record. The Court sustained the provisions as tools that served informational and enforcement purposes connected to the regulatory system Congress had built. Disclosure allowed voters to learn who financed a candidate, allowed the press and opposing campaigns to examine those relationships, and allowed enforcement officials to detect violations of the contribution limits themselves. Recordkeeping gave disclosure its factual foundation, because a report can only be as reliable as the records kept behind it. The provisions imposed burdens of compliance, and they exposed contributors to public scrutiny, yet the Court treated those burdens as justified within the framework before it.

Public financing also survived. The payment system built by the 1974 amendments rested on the Presidential Election Campaign Fund, which the Revenue Act of 1971, Public Law 92-178, had created through a floor amendment carried by Senator Pastore, together with the one dollar tax checkoff. The 1974 amendments built matching payments for presidential primaries, full grants for the general election, and grants for nominating conventions on that fund. The Court sustained the public financing system against constitutional challenge, leaving in place a model in which a candidate could accept public money under statutory conditions rather than raise all campaign funds from private sources. The first financed cycle was 1976, the same year as the decision, so the system entered operation with its constitutional basis confirmed rather than left in doubt.

The reasoning sustaining public financing differed from the reasoning sustaining contribution limits. A contribution limit restricts what a private person may give. Public financing offers a candidate an alternative source of funds, structured by eligibility rules and conditions attached to acceptance. The Court left that offer standing as a permissible legislative choice. Candidates remained able to decline the funds and finance a campaign privately, subject to the contribution limits and disclosure rules that applied to private fundraising. The voluntary character of participation mattered to the structure, because the conditions attached to public money bound candidates who accepted the payments rather than imposing expenditure ceilings on every candidate by direct command. That difference between a condition attached to a benefit and a ceiling imposed by law became one of the clearest illustrations of the larger distinction the case drew.

What fell in Buckley v. Valeo fell for reasons almost opposite to the reasons that sustained the contribution limits. The candidate expenditure ceilings restricted the total amount a campaign could spend in an election. The Court struck those ceilings because spending money to communicate with voters sits at the center of a campaign, and a ceiling on spending operates as a ceiling on the quantity of political communication. A campaign spends money on the activities through which it reaches the electorate, and a legal limit on expenditures therefore limits how much speech a campaign can produce and distribute. The Court treated that restriction as a direct burden on expression rather than as an incidental effect of regulating a financial transaction. Where contribution limits regulated the size of a transfer into a campaign, expenditure ceilings regulated the campaign output itself.

The ceiling of 1,000 dollars on independent expenditures fell on the same ground. Independent expenditures are spending for communication made without coordination with a candidate, and the Court treated a cap on that spending as a cap on the speech of the spender. The person or group making an independent expenditure uses money to produce and place a message, and limiting the amount that may be spent limits the reach and repetition of the message itself. The Court also found the anti-corruption rationale weaker in that setting, because spending independent of a candidate lacks the same character as a direct transfer to the candidate. Without coordination, the link between the spending and an obligation felt by the officeholder becomes attenuated. The expenditure therefore stood closer to direct political communication by a citizen or association, and a ceiling upon it restricted expression without the justification that had sustained the contribution limits.

The limits on a candidate’s use of personal funds fell as well. Those limits restricted how much of a candidate’s own money could be devoted to the candidate’s own campaign. The Court treated personal spending by a candidate as the candidate’s own expression, advanced through the candidate’s own resources. A ceiling on that spending limited the candidate’s ability to communicate with voters in the same direct manner as a general expenditure ceiling. The reasoning also reflected skepticism toward justifications framed in terms of equalizing the resources of competing candidates. Reducing the advantage of a wealthy candidate by restricting that candidate’s spending required limiting expression itself, and the Court declined to accept equality of resources as a basis for that kind of restriction. The result left personal wealth as a lawful source of campaign funding, subject to the disclosure provisions that survived, while direct contributions from other persons remained subject to the limit the Court had sustained.

Taken together, the fallen provisions shared a common feature. Each restricted the amount of money that could be spent to communicate, whether the spender was a campaign, an independent speaker, or the candidate personally. The provisions that survived shared a different feature. Each regulated a transfer into a campaign, required a record of campaign money, or offered public funds under conditions a candidate could accept or refuse. That pattern gave the decision its internal logic and its long influence. The Court did not hold that Congress lacked power over campaign finance. It held that the location of a regulation within the flow of political money determined much of its constitutional fate. Regulation at the point of contribution received deference grounded in corruption and its appearance. Regulation at the point of expenditure received strict skepticism grounded in the quantity of communication restricted.

The appointment ruling addressed a different constitutional problem, one of structure rather than expression. The Commission created by the 1974 amendments included members appointed by Congress, yet the Commission exercised executive functions in administering and enforcing the statute. The Court struck that appointment method because officers exercising executive authority could not be selected through a process that placed congressional appointment in that role. The defect did not concern the policy choices embedded in the statute. It concerned who held the power to execute them. A commission charged with enforcement performs executive work, and the Constitution assigns the appointment of officers performing such work through mechanisms that preserve the separation between the legislative and executive branches. Congressional appointment of members exercising those functions crossed that boundary.

The appointment holding created an immediate institutional problem. The statute had created the Commission as the administrator of the contribution limits, disclosure system, and public financing payments that the Court had sustained. A ruling that preserved those substantive provisions while invalidating the Commission composition left the system in need of a lawful administrator. Congress answered in 1976 through the Federal Election Campaign Act Amendments of 1976, Public Law 94-283, which reconstituted the Commission after Buckley v. Valeo struck its appointment structure. The repair addressed the constitutional defect the Court had identified while preserving the institution Congress had created. The Commission that emerged from that repair administered federal campaign finance law under the structure described in the governing statute, with six commissioners, no more than three from one political party, and four affirmative votes required at the decisive enforcement stages.

The durable rule the decision left behind was the contribution and expenditure distinction. On one side of the line, contributions could be limited because a contribution functions as support expressed through a transfer, because a limit leaves other avenues of expression open, and because direct transfers to candidates present the danger of corruption and its appearance in a concrete form. On the other side of the line, expenditures could not be capped in the manner the 1974 amendments had attempted, because spending for communication is the means by which campaigns and independent speakers reach the public, and a cap restricts the quantity of expression directly. Legislators drafting after 1976 worked inside that framework whether they welcomed it or resisted it.

That framework shaped the litigation over the Bipartisan Campaign Reform Act a generation later and shapes the reading of the campaign finance decisions that followed in later decades as a single connected line of doctrine. Each later case asked, in some form, where the regulated money sat in relation to a candidate and how directly the regulation restricted communication. Soft money, electioneering communications, and independent expenditure committees each presented the question in a new factual setting, yet the vocabulary of the analysis descended from the distinction drawn in 1976. Reform organizations and sponsoring members argued that money routed toward candidates and parties carried the corruption danger the Court had credited in sustaining contribution limits. Litigants and affected speakers argued that restrictions reaching independent communication repeated the error of the expenditure ceilings. The Court in each generation had to locate the regulated activity on a map first drawn in response to the 1974 amendments.

The later confirmation of the contribution side of the line came in FEC v. Beaumont, 539 U.S. 146 (2003). In that decision, the ban on corporate contributions to candidates was sustained, including as applied to a nonprofit advocacy corporation. The case tested whether the corporate form of the contributor, and the nonprofit advocacy character of the particular corporation, removed a direct contribution from the category of regulation Buckley v. Valeo had allowed. The Court held that it did not. A corporate contribution to a candidate remained a contribution, subject to prohibition as well as to limitation, and the anti-corruption reasoning that sustained contribution limits extended to that prohibition. The decision confirmed that the contribution side of the distinction retained force decades after 1976, even when the contributor pressed sympathetic claims based on its organizational purpose.

FEC v. Beaumont also clarified the boundary by contrast. The corporate contribution ban survived because it regulated money given directly to candidates. Corporate contributions to candidates survived Citizens United v. Federal Election Commission without disturbance, because the regulation at issue in FEC v. Beaumont governed a transfer into a campaign rather than independent spending on communication. The distinction therefore operated in both directions across the decades. It protected contribution regulation from challenges based on the identity or purpose of the contributor, and it exposed expenditure regulation to challenges based on the burden imposed on communication.

Measured against the speed of its arrival and the breadth of its holdings, Buckley v. Valeo functioned less as a final settlement than as a framework for continuing argument conducted under judicial supervision. The contribution limits stood. Disclosure and recordkeeping stood. Public financing stood, and the first financed presidential cycle proceeded in 1976 under a system the Court had sustained. The expenditure ceilings, the independent expenditure ceiling, and the personal funds limits fell, and Congress repaired the Commission through the amendments of 1976 without reviving them. The decision therefore gave the 1974 Congress a partial victory of unusual durability and a partial defeat of equal durability. The contribution and expenditure distinction remained the rule against which each new provision in the Bipartisan Campaign Reform Act of 2002 was tested.

The Judicial Fate of the Later Statute

The Bipartisan Campaign Reform Act of 2002 entered the legal system as an amendment rather than as a replacement. Congress enacted the statute on March 27, 2002, as Public Law 107-155, and its core provisions took effect on November 6, 2002, the day after the general election of that year. The statute amended the Federal Election Campaign Act, and litigation over the later law proceeded through administration by the Federal Election Commission and enforcement through the courts. A fuller account in the profile devoted to the Bipartisan Campaign Reform Act as a statute in its own right traces the enactment history separately, while the sequence of judgments between 2003 and 2010 defined which parts of the 2002 design a court would sustain, which parts a court would narrow, and which parts a court would remove altogether. That sequence moved in stages. A facial challenge came first and failed on both principal titles. An as applied challenge followed and narrowed one title without removing the title itself. A separate provision concerning self funded opponents fell in 2008. The central prohibition on treasury funding of electioneering communications fell in 2010, in a judgment that also sustained disclosure and disclaimer requirements.

The first test arrived quickly because the statute contained an expedited judicial review provision, and McConnell v. Federal Election Commission, 540 U.S. 93 (2003), was litigated under that provision. The Supreme Court decided the case on December 10, 2003, just over a year after the core provisions had taken effect on November 6, 2002. Speed mattered to the character of the challenge. A facial challenge asks a court to hold a statutory scheme invalid on its face, across the range of applications the text reaches, rather than to excuse a single speaker or a single transaction from an otherwise valid rule. Litigants therefore placed the design of the statute itself before the Court, and the Court answered at the level of design. The judgment sustained Title I and Title II against that facial challenge, leaving both titles operative as written while leaving open the possibility that a later litigant might contest a particular application on a particular record. The distinction between a facial ruling and an as applied ruling runs through the entire sequence that followed.

Title I addressed soft money, and the 2003 judgment sustained the prohibition at the center of that title. Under Title I, national party committees were prohibited from soliciting, receiving, or spending soft money, and state and local party committees faced restrictions on the use of such funds for federal election activity, subject to the Levin amendment exception for certain activity financed with funds raised under state law within limits. The prohibition answered a channel that had grown under the earlier statute, after the amendments of 1979 placed grassroots and party building spending by state and local party committees outside the statutory definitions of contribution and expenditure. Reform organizations and the sponsoring members, Senators John McCain and Russell Feingold in the Senate and Representatives Christopher Shays and Marty Meehan in the House, presented the prohibition as a measure against corruption and the appearance of corruption in the movement of large sums through party committees. Litigants challenging the statute presented the contrary expression argument, contending that restrictions on the funding of political speech burdened speech protected by the First Amendment. In McConnell v. Federal Election Commission, the Court sustained Title I against the facial challenge, and that holding gave the prohibition a foundation that later judgments did not disturb.

Title II addressed electioneering communications, and the 2003 judgment sustained that title against facial challenge as well. The title defined a category by medium, timing, and audience. A broadcast, cable, or satellite communication that named a federal candidate within 30 days of a primary or within 60 days of a general election, and that was aimed at the relevant electorate, could not be paid for from corporate or union treasury funds, and disclosure was required for electioneering communications. The definition did not turn solely on whether a communication used words of express advocacy, and that breadth formed part of the dispute, because a communication could fall inside the statutory window by naming a candidate close to an election even when the communication addressed an issue. Affected speakers and litigants pressed the expression argument against that breadth, while reform organizations and sponsoring members defended the title as a response to the use of treasury funds for candidate focused advertising near elections. The Court in McConnell v. Federal Election Commission rejected the facial attack on Title II, as the Court had rejected the facial attack on Title I, so that by the end of 2003 both operative titles had survived the most general form of challenge the expedited review provision had brought forward.

The narrowing of Title II came four years after the facial ruling, in FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007). The posture differed from the posture of McConnell v. Federal Election Commission. Instead of asking the Court to invalidate the title on its face, the 2007 litigation asked whether the advertising restriction could constitutionally be applied to a particular advertisement. The Court held the restriction unconstitutional as applied to an ad that was not the functional equivalent of express advocacy. The statute therefore continued to exist as a title, and the 2003 facial holding was not erased, but the range of communications that the treasury fund restriction could reach contracted. The 2007 judgment left the text of Title II in place while placing a constitutional limit on one use of that text, and the limit turned entirely on characterization of the advertisement under a test the Court stated in functional terms.

In the formulation stated in FEC v. Wisconsin Right to Life, an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate. The double negative in that formulation carried practical weight. A court applying the test was asked whether any reasonable nonelectoral interpretation existed, and the existence of such an interpretation took the advertisement outside the functional equivalent category. The test therefore protected issue discussion that named a candidate during a statutory window, provided the discussion remained reasonably interpretable as something other than an electoral appeal, while preserving the restriction for communications that admitted no reasonable interpretation apart from an electoral appeal. The line was demanding for the government to satisfy, and that demanding quality was the substance of the narrowing.

The sequence between 2003 and 2007 illustrates why order and posture matter. In 2003, the electioneering communications title survived as a scheme, including its timing windows and its prohibition on payment from corporate or union treasury funds. In 2007, a particular application of the advertising restriction failed because the advertisement at issue did not meet the functional equivalent standard. Neither judgment contradicted the other, because each answered a different question in a different posture, and the change between 2003 and 2007 occurred through posture rather than through repeal of the title.

A separate provision fell in Davis v. Federal Election Commission, 554 U.S. 724 (2008). The provision was the Millionaire’s Amendment, which raised contribution limits for a candidate facing a self funded opponent. The design of the provision differed from the design of Title I and Title II. Title I regulated soft money by party committees, and Title II regulated the funding source for a defined category of communications during defined windows before elections. The Millionaire’s Amendment instead adjusted the limits applicable to one candidate in response to the personal spending of another candidate in the same race, so that the provision operated as an equalizing mechanism triggered by the scale of self funding on one side. The Court struck the provision in 2008. The strike was peripheral to the architecture of the statute in the sense that the judgment did not remove Title I, did not remove Title II, and did not disturb the increase in the individual contribution limit from 1,000 dollars to 2,000 dollars that the statute had enacted and indexed to inflation. The judgment nevertheless mattered within the sequence, because a provision built around asymmetric limits proved vulnerable in a way that the soft money prohibition and the electioneering communications scheme, as schemes, had not proved vulnerable on facial review.

The central strike came in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), decided on January 21, 2010, eight years after enactment of the statute on March 27, 2002. By that date, the title had survived facial review in 2003 and had undergone as applied narrowing in 2007, and the 2010 litigation placed the treasury fund prohibition itself before the justices in direct form. The judgment divided the Court by five votes to four on the prohibition, and by eight votes to one on disclosure and disclaimer, Justice Thomas alone dissenting on that part, a division that requires any summary of the decision to carry both halves together. A summary that reported only the strike would misstate the judgment, because the same decision that removed the prohibition sustained the transparency requirements that accompanied the communications regime. A summary that reported only the disclosure holding would misstate the judgment for the opposite reason. The two halves belonged to a single judgment delivered on a single day, and the statute after January 21, 2010 reflected both halves at once.

Which parts of the Bipartisan Campaign Reform Act did the courts strike?

Courts struck the Millionaire’s Amendment in Davis v. Federal Election Commission; struck the treasury fund prohibition in Citizens United v. Federal Election Commission, which upheld disclosure and disclaimer requirements by eight votes to one, Justice Thomas alone dissenting on that part; and narrowed the advertising restriction as applied in FEC v. Wisconsin Right to Life, while Title I survived.

On the prohibition, Citizens United v. Federal Election Commission struck the bar on corporate and union treasury funding of electioneering communications and independent expenditures by five votes to four, overruling Austin and the relevant part of McConnell v. Federal Election Commission, and upheld the disclosure and disclaimer requirements by eight votes to one, with Justice Thomas alone dissenting on that part. The overruling element gave the 2010 judgment a reach beyond the parties at issue. Austin had supplied precedent supporting a treasury fund restriction of the kind under review, and the relevant part of McConnell v. Federal Election Commission had sustained Title II against facial challenge in 2003. A judgment that overruled Austin and the relevant part of McConnell v. Federal Election Commission removed that authority in the area the overruling covered, so that the 2003 facial sustaining of the electioneering communications prohibition no longer governed the treasury fund question after January 21, 2010. The as applied narrowing of 2007 had contracted the prohibition at its edges. The 2010 judgment removed the prohibition for the category of spending the judgment addressed.

On disclosure, the same judgment in Citizens United v. Federal Election Commission struck the treasury fund prohibition on electioneering communications and independent expenditures by five votes to four and upheld the disclosure and disclaimer requirements by eight votes to one, with Justice Thomas alone dissenting on that part. Disclosure and disclaimer occupied a different position in the statute from the funding prohibition. The statute required disclosure for electioneering communications, and section 311 imposed a disclaimer requirement under which a communication carried a statement of responsibility for its content. Litigants and affected speakers challenged requirements of that kind as burdens on speech, while reform organizations and sponsoring members defended disclosure as a means to identify the source of funds behind a communication. The eight to one division on that part of the case stood in sharp contrast to the five to four division on the prohibition, and the contrast is part of the holding rather than an incidental detail of vote counting. Justice Thomas stood alone in dissent on the disclosure and disclaimer part, and the judgment left those requirements in force as part of the amended statute after January 21, 2010.

Attribution after 2010 requires a further distinction that accounts of the period frequently blurred. Super PACs were made possible by SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010), an appellate decision of the United States Court of Appeals for the District of Columbia Circuit, decided en banc on March 26, 2010, and not by Citizens United v. Federal Election Commission itself, a decision that struck the treasury fund prohibition on electioneering communications and independent expenditures by five votes to four and upheld disclosure and disclaimer requirements by eight votes to one, with Justice Thomas alone dissenting on that part. The distinction turns on the kind of limit each case addressed. SpeechNow.org v. Federal Election Commission addressed contribution limits as applied to a committee making only independent expenditures, and the appellate court held that contribution limits cannot constitutionally be applied to such a committee. Such a committee could therefore accept contributions without the limits that applied to committees making contributions to candidates, and that appellate holding supplied the legal basis for super PACs as independent expenditure only committees accepting unlimited contributions. Crediting the Supreme Court judgment for a development that rested on the appellate holding misassigns the decision, the court, and the legal mechanism.

The distinction between the two 2010 decisions also explains why the channel that grew after 2010 took the form the record describes. Independent expenditure only committees accepting unlimited contributions after SpeechNow.org v. Federal Election Commission operated alongside nonprofit organizations organized under section 501(c)(4) of the Internal Revenue Code that spent on elections with less disclosure, and groups aligned with both parties used both channels. The spending prohibition ruling in Citizens United v. Federal Election Commission, stated in full as a judgment that struck the treasury fund prohibition on electioneering communications and independent expenditures by five votes to four and upheld disclosure and disclaimer requirements by eight votes to one, with Justice Thomas alone dissenting on that part, addressed whether corporations and unions could spend treasury funds. The contribution ruling addressed whether a committee devoted solely to independent expenditures could receive funds without contribution limits. The super PAC as a form depended on the second ruling, because unlimited contributions entered the picture through the appellate court rather than through the Supreme Court.

Against that sequence of narrowing, peripheral invalidation, and central invalidation, one element of the 2002 statute was never struck. The Title I soft money prohibition, sustained against facial challenge in McConnell v. Federal Election Commission on December 10, 2003, was not invalidated in 2007 or in 2008, and was not invalidated by Citizens United v. Federal Election Commission on January 21, 2010, in a judgment that struck the treasury fund prohibition on electioneering communications and independent expenditures by five votes to four and upheld disclosure and disclaimer requirements by eight votes to one, with Justice Thomas alone dissenting on that part. The appellate judgment in SpeechNow.org v. Federal Election Commission on March 26, 2010 likewise addressed contribution limits for an independent expenditure only committee and did not disturb Title I. National party committees therefore remained subject to the prohibition Title I had imposed, and state and local party committees remained subject to the restrictions on the use of such funds for federal election activity, with the Levin amendment exception. The record states the point without qualification. Title I’s soft money prohibition has never been struck, and national party soft money has not returned.

The durability of Title I acquires significance from the scale of the practice the title addressed. Party soft money had grown from about 45 million dollars in the 1988 cycle to about 262 million dollars in the 1996 cycle and about 495 million dollars in the 2000 cycle, the first of those figures being the Brennan Center’s and the later two drawn by the Congressional Research Service from Federal Election Commission data. The reform case for Title I, as reform organizations and sponsoring members presented that case, rested on the proposition that sums of that magnitude moving through party committees outside the contribution limits created corruption or the appearance of corruption. The expression case, as litigants and affected speakers presented that case, rested on the proposition that restricting funds available for political activity restricted political speech. The facial challenge in 2003 placed those presentations before the Court in general form, and the Court sustained the prohibition. Later judgments accepted expression arguments against other provisions of the same statute, yet no later judgment revisited the sustaining of Title I.

The judicial fate of the later statute, measured across the dated judgments from December 10, 2003 to March 26, 2010, was therefore divided along lines the individual holdings mark with precision. Expedited review produced an early sustaining of both principal titles against facial challenge. As applied review produced a narrowing of the electioneering communications restriction under a test that asked whether an advertisement admitted any reasonable interpretation apart from an electoral appeal. A provision adjusting limits against self funded opponents fell in a judgment confined to that provision. The treasury fund prohibition fell under a five to four judgment in Citizens United v. Federal Election Commission that struck that prohibition on electioneering communications and independent expenditures and also sustained disclosure and disclaimer requirements by eight votes to one, Justice Thomas alone dissenting on that part, and the appellate ruling that made super PACs possible came from a different court, in a different case, on a different legal question concerning contributions to a committee making only independent expenditures. The soft money prohibition of Title I survived the entire sequence without invalidation.

The Consequence Axis: The Channel That Followed Each Closure

A comparison of the Federal Election Campaign Act and the Bipartisan Campaign Reform Act gains much of its force from the years after enactment, because each statute changed not only the rules governing money already inside the federal system but also the relative attractiveness of routes beyond a particular prohibition. The consequence took a distinct institutional form in each period. After the Federal Election Campaign Act, the growth channel ran through political parties themselves, using accounts and activities that the amended statute placed outside the federal definitions that triggered contribution and expenditure treatment. After the Bipartisan Campaign Reform Act, the growth channel ran outside the parties, through independent organizations that were not party committees. In the first period, parties remained the central intermediaries and absorbed the additional money into party operations. In the second period, parties lost access to the earlier form of money, and organizations separate from parties became the principal recipients of the displaced activity.

The opening for party soft money came from a deliberate statutory revision rather than from silence in the original act. The Federal Election Campaign Act Amendments of 1979, Public Law 96-187, signed on January 8, 1980, placed grassroots and party building spending by state and local party committees outside the statutory definitions of contribution and expenditure. That placement carried practical significance because the federal system organized much of its regulation through those definitions. An amount treated as a contribution fell within a regime of limits and prohibitions tied to federal elections. Spending treated as an expenditure fell within rules governing spending to influence federal elections. Activity placed outside both definitions occupied a different position. State and local party committees could conduct the specified grassroots and party building work without that work entering the federal system in the same manner as a contribution to a federal candidate or an expenditure on behalf of a federal candidate. The comparison record describes that definitional exclusion as the soft money opening, and the later growth of party soft money followed from the space the exclusion created.

The activities covered by the 1979 revision sounded modest in generic terms, yet party building covered the continuing work that allowed a party to function between candidate campaigns and across an election cycle. Grassroots activity meant party work directed toward voters and local participation rather than toward a single named federal candidacy. Party building meant the organizational maintenance and development of the party itself. Those categories could cover voter registration, efforts to encourage turnout, generic support for the party label, and the ordinary work that kept state and local committees able to operate. Such work benefited federal candidates in an indirect and collective sense, because a stronger party organization could register supporters, communicate with voters, and mobilize participation in an election in which federal candidates appeared on the ballot. The benefit, however, did not take the legal form of a contribution for a particular candidate, and the spending did not take the legal form of an expenditure directed to a particular federal race. The amendments therefore created a channel defined by function, and money directed to the specified functions could move through party committees under a treatment different from money directed expressly to federal candidates.

A second development widened the channel from state and local party activity into the finances of national parties. During the early 1990s, allocation rules adopted by the Federal Election Commission allowed national parties to pay shared costs partly from nonfederal accounts. Allocation addressed a practical accounting problem. Party committees conducted activities and maintained operations that had both federal and nonfederal dimensions, and a single cost could support work across that divide. Rent, staff activity, and other shared expenses did not always separate neatly into a federal portion and a nonfederal portion. The allocation approach divided such costs rather than requiring every shared cost to be paid entirely from federal, or hard money, accounts. The portion assigned to the nonfederal side could be paid from a nonfederal account, and money in that account became known in the comparison as soft money. The importance of allocation lay in combination with the 1979 exclusion. Allocation supplied a method by which national parties could assign part of the cost of mixed activity to nonfederal funds. Together, the statutory definition and the administrative rule gave parties a structure for raising and using money outside the federal contribution limits that governed hard money.

Soft money growth after those two developments was substantial in scale and was recorded across several election cycles. The Brennan Center placed party soft money at about 45 million dollars in the 1988 cycle. Congressional Research Service figures drawn from Federal Election Commission data placed the amount at about 262 million dollars in 1996 and at about 495 million dollars in 2000. The progression from 1988 to 2000 showed more than a minor accounting adjustment at the margins of party finance. By 2000, the nonfederal channel had become a major component of national party activity, measured in hundreds of millions of dollars during a single election cycle. The channel expanded during the 1990s under the allocation framework and reached the recorded 2000 level before the Bipartisan Campaign Reform Act addressed national party soft money directly in 2002. The growth was therefore not a single cycle anomaly tied to one campaign. It was a sustained feature of party finance across the closing cycles of the twentieth century.

Both major parties used the channel at scale. Democratic party committees and Republican party committees each raised soft money and each spent soft money through the party structures that the definitions and allocation rules made available. That symmetry is central to a neutral account of the period. Soft money did not develop as the instrument of only one party, and the incentives that produced growth did not depend on the ideology of the committee raising the money. A national party that declined to use nonfederal accounts for shared costs placed itself at an organizational disadvantage against an opposing party that used those accounts for the same kinds of activity. A state or local party that declined to finance grassroots and party building work through the available treatment faced a similar competitive pressure. The result was a shared practice built into party competition. The channel grew because the legal structure made it available to parties generally and because competitive politics rewarded parties that used it.

The money bought forms of political activity that were real even though they differed from direct contributions to candidates. In neutral terms, soft money supported party building, issue advertising, and voter mobilization. Party building covered the organizational foundation of campaigns, including the maintenance of party committees and the capacity to conduct activity across federal, state, and local races. Issue advertising allowed parties to communicate about public questions and about the records or positions associated with candidates without every communication taking the form of a direct candidate contribution. Voter mobilization covered work intended to identify supporters, encourage registration, and bring voters to the polls. Each category had an electoral effect, and each also had a function broader than a single advertisement for a single candidate. Registration and turnout work could affect an entire ballot, party building could strengthen an organization for later cycles, and issue advertising could shape the environment in which voters evaluated candidates. The channel therefore financed a different layer of election activity, centered on parties as organizations rather than on the formal transfer of funds to a candidate committee.

The first consequence sequence also illustrates how a statutory definition can shape behavior as powerfully as a prohibition. The 1979 amendments did not raise a candidate contribution limit or abolish the Federal Election Commission. The amendments changed the classification of specified spending by state and local party committees. Allocation rules then changed how national parties could divide shared costs between federal and nonfederal accounts. Those classification and accounting decisions redirected money toward forms of party activity that lay outside the federal contribution and expenditure definitions. Donors who wished to support a party beyond the amounts permitted for federal contributions had a party channel available. Party committees that needed resources for organization, communication, and mobilization had a reason to develop that channel. Over successive cycles, repeated use turned an opening in the definitions into an established system of party finance. By the time Congress enacted the Bipartisan Campaign Reform Act in 2002, national party soft money had become sufficiently central that Title I of the later statute addressed the practice directly and prohibited national party committees from soliciting, receiving, or spending soft money. The target of that later prohibition was the product of the earlier consequence sequence.

The Bipartisan Campaign Reform Act changed the location of the growth channel by closing the party route that had developed after 1979. The act, Public Law 107-155, signed on March 27, 2002, amended the Federal Election Campaign Act rather than replacing that statute, and its core provisions took effect on November 6, 2002, the day after the general election of that year. Title I prohibited national party committees from soliciting, receiving, or spending soft money. Title I also restricted state and local parties in the use of such funds for federal election activity, subject to the Levin amendment exception for certain activity conducted with funds raised under state law within limits. The prohibition addressed the channel at the point where growth had been largest, the national party committees that had raised about 495 million dollars in soft money during the 2000 cycle. After the effective date, parties could continue to raise and spend hard money under the federal rules, but the nonfederal account that had financed a large share of party building, issue advertising, and voter mobilization was closed to national parties by statute.

Where did the money go after the soft money ban?

After the ban took effect in the 2002 cycle transition, money displaced from national parties appeared in independent organizations during the 2004 cycle, first in groups registered under section 527 of the Internal Revenue Code and, after 2010, in super PACs and in election spending by organizations under section 501(c)(4).

The organizations that carried the first phase of the new channel took their name from the provision of the Internal Revenue Code under which they registered. Organizations registered under section 527 became active in federal elections during the 2004 cycle, the first presidential cycle conducted after Title I took effect. A 527 organization was a political organization for tax purposes, distinct from a candidate committee and from a party committee. That distinct legal identity placed the form outside the party soft money prohibition. Title I governed party committees and the funds that party committees could solicit, receive, and spend. A separate organization that was not a party committee stood in a different relationship to that prohibition, even when observers associated the organization with one party or the other. The channel therefore differed from the soft money channel in a fundamental organizational respect. Soft money had flowed to parties and had strengthened parties as intermediaries. Money in the 2004 cycle flowed to organizations outside the party structure, and parties no longer served as the receiving institution for that portion of election related finance.

The scale of the 2004 channel was large enough to establish the form as more than a temporary substitute used by a small number of groups. The Campaign Finance Institute counted roughly 405 million dollars in receipts by 527 organizations active in federal elections in that cycle. The figure measured receipts by a defined set of organizations rather than party soft money, so direct numerical equivalence with the 495 million dollars recorded for party soft money in 2000 would misstate two different measures. The comparison in magnitude nevertheless carried meaning. Within one cycle after Title I took effect, an outside channel had attracted receipts in the hundreds of millions of dollars, at a scale comparable in public significance to the party channel that Congress had closed. Organizers had adopted a different organizational form, registered under a different part of federal law, and donors had supplied that form with resources during the first cycle in which the new party rules governed a presidential election.

Groups aligned with each party used the 527 form, and the emblematic names from the 2004 cycle illustrate that symmetry. On the Democratic side, America Coming Together and the Media Fund operated as prominent 527 organizations during the cycle. On the Republican side, Swift Boat Veterans for Truth and Progress for America operated as prominent organizations of the same general form. The activities and messages of those groups differed, but the organizational development was shared. Alignment did not turn an outside organization into a party committee, and party alignment appeared on both sides of the partisan divide. Democratic aligned donors and organizers built organizations outside the Democratic Party structure because the party structure could no longer receive soft money. Republican aligned donors and organizers built organizations outside the Republican Party structure for the corresponding reason. The result was a parallel construction, in which each side developed an external capacity for election related activity while formal party committees operated under the soft money prohibition that Title I imposed.

Regulation of the new form remained undecided during the cycle in which the form grew. In May 2004, the Federal Election Commission voted to delay deciding whether to regulate organizations registered under section 527 as political committees. That vote did not create the 527 channel, and the vote did not amend Title I. The significance of the vote lay in timing and in classification. Classification as a political committee would have brought an organization within a federal regulatory category administered by the Commission, with the consequences that followed from that category. Delay left the classification question unresolved while the 2004 cycle proceeded and while 527 organizations collected the receipts counted by the Campaign Finance Institute. After 1979, a statutory definition had placed specified party activity outside the contribution and expenditure definitions, and allocation rules had later widened the resulting channel. In 2004, a statutory prohibition had closed party soft money, and an unresolved classification question left outside organizations operating during the cycle in which the replacement form was tested at scale.

A further change in organizational form followed the decisions of 2010. After 2010, super PACs and election spending by nonprofit organizations under section 501(c)(4) became the growth channels, and groups aligned with both parties used each form. A super PAC was an independent expenditure only committee that could accept unlimited contributions after SpeechNow.org v. Federal Election Commission, the appellate decision of March 26, 2010, which held that contribution limits could not constitutionally be applied to a committee making only independent expenditures. Alongside super PACs, nonprofit organizations under section 501(c)(4) spent on elections with less disclosure than the committee form provided. Organizers aligned with the Democratic Party and organizers aligned with the Republican Party each used both forms during the period after 2010. The wider campaign finance law impact record places that movement between channels in a longer setting, in which each change in the governing rules altered the organizational form that large scale election related money took rather than removing the demand for such money from federal elections.

The post 2010 phase also broadened the meaning of displacement beyond a single replacement channel. In 2004, one organizational form, the 527 organization, had absorbed much of the activity displaced from party soft money, and a single receipts figure from the Campaign Finance Institute could describe the scale of that form for the cycle. After 2010, growth appeared in at least two forms at once. Super PACs supplied a committee form devoted to independent expenditures and financed by unlimited contributions. Organizations under section 501(c)(4) supplied a nonprofit form that spent on elections with less disclosure. Party committees, candidate committees, super PACs, and nonprofit organizations therefore occupied different positions in the same federal election system, each defined by a different legal source and each subject to a different set of rules. The pattern had become a distribution of election related finance across several organizational forms, only some of which were committees regulated under the Federal Election Campaign Act.

The recurring pattern can be stated descriptively without converting description into a verdict that either statute accomplished nothing. The Federal Election Campaign Act system regulated contributions and expenditures inside its reach, and Buckley v. Valeo sustained the contribution limits at the center of that system in 1976, yet money grew during the 1980s and 1990s in party accounts and party activities placed outside the statutory definitions. The Bipartisan Campaign Reform Act closed national party soft money inside its reach, and Title I was never struck, with national party soft money not returning under the prohibition, yet money grew during the 2004 cycle in 527 organizations and grew after 2010 in super PACs and in spending by organizations under section 501(c)(4). In each sequence, closure and growth occurred together, and each sequence changed who received the money, which legal form governed the money, and how visible the money was under the applicable disclosure rules. Candidates and parties continued to operate under the contribution limits and prohibitions that courts sustained, even as independent organizations expanded outside those particular rules. Each statute closed a channel inside its reach and money grew in a channel outside it, and in each period political organizations developed the channel that the altered route left open.

The Counter-Reading: Why Neither Statute Fits Its Reputation

A simple account assigns each statute a single character. The Federal Election Campaign Act stands as the achievement, and the Bipartisan Campaign Reform Act stands as the disappointment. The earlier statute, completed by the amendments of 1974, supposedly built a working order of contribution limits, disclosure, public financing, and an enforcing commission, while the later statute supposedly failed to remove money from federal elections and lost its most visible restrictions in court. Measured against what courts sustained and struck, and against what candidates, parties, and other organizations did under each law, neither label holds. The statute remembered as the success lost central parts of its design within two years and watched another central part fall into disuse through the choices of the candidates it was built to serve. The statute remembered as the failure kept its central prohibition intact through every challenge in the record, and the decision most often cited as its defeat preserved other parts of it by eight votes to one.

The strongest version of the reputation attached to the Federal Election Campaign Act deserves a fair statement first. Reform organizations defended the public financing system and defended the later statute as well, and the case for the earlier law began with architecture. The Act of 1971, Public Law 92-225, signed on February 7, 1972, tightened disclosure, limited media spending, and capped some contributions. The amendments of 1974, Public Law 93-443, signed on October 15, 1974, set an individual contribution limit of 1,000 dollars per candidate per election, imposed expenditure ceilings, created the Federal Election Commission, and built a system of payments for presidential campaigns on the fund created three years earlier. On that account, the achievement was coherence. Money would be limited at the point of contribution, reported under disclosure and recordkeeping rules, supervised by a commission created for the purpose, and matched in presidential contests by a public alternative that reduced dependence on private donors. Reform organizations treated those elements as mutually reinforcing. Contribution limits would restrain the size of individual influence, disclosure would expose the flow of funds, and public money would give qualifying candidates a reason to accept the discipline of the system.

The record answers that reputation at its foundation. In Buckley v. Valeo, 424 U.S. 1 (1976), decided on January 30, 1976, roughly fifteen months after the 1974 amendments were signed, the Court sustained the contribution limits, the disclosure and recordkeeping provisions, and public financing. The same decision struck the candidate expenditure ceilings, the 1,000 dollar ceiling on independent expenditures, and the limits on a candidate use of personal funds. The distinction drawn there between contributions and expenditures governed everything that followed. The half of the 1974 design that controlled how much money could be spent did not erode through evasion or weaken through amendment. A court removed it, on constitutional grounds, before the first financed presidential cycle had run its course, and no later Congress restored it. What remained regulated the size and source of contributions while leaving expenditures outside the ceiling structure the statute had imposed.

The institutional centerpiece met a parallel fate in the same decision, because Buckley v. Valeo struck the appointment method of the Federal Election Commission, holding that members appointed by Congress were exercising executive functions. Congress answered with the amendments of 1976, Public Law 94-283, which reconstituted the Commission. The reconstituted structure carried a lasting limitation. The Commission has six commissioners, no more than three from one political party, and four affirmative votes are required at the decisive enforcement stages. Two readings of that even division stand as contested ground. One reading treats the division as a design producing deadlock on contested questions, and another reading treats the division as protection against one party enforcement. Both readings begin from the same arithmetic. Between August 2019 and December 2020, the Commission lost its quorum, passing from a condition in which contested questions could fail for want of a fourth vote to a condition in which the voting membership itself was incomplete. An agency that endured for decades, deadlocked on contested questions, and lost its quorum for that period complicates any account in which a dedicated commission counts as an unqualified institutional success.

What became of presidential public financing?

Candidates abandoned the system in stages. George W. Bush declined primary matching funds in 2000, both nominees declined them in 2004, Barack Obama declined the general election grant in 2008, and no major candidate accepted public funds at either stage in 2012.

The sequence begins with a fund that the Federal Election Campaign Act did not itself create. The one dollar tax checkoff and the Presidential Election Campaign Fund were created by the Revenue Act of 1971, Public Law 92-178, through a floor amendment carried by Senator Pastore. The amendments of 1974 built the payment system on that fund, providing matching payments for presidential primaries, full grants for the general election, and grants for nominating conventions, with the first financed cycle in 1976. The defense offered by reform organizations rested on that operation over the generation that followed. In its strongest form, that defense held that public financing gave candidates a positive reason to accept limits rather than relying only on prohibitions. The candidates for whose benefit that alignment was designed dismantled it by declining to participate. George W. Bush in 2000 became the first major party nominee to decline primary matching funds. In 2004, both nominees declined primary matching funds while accepting general election grants. In 2008, Barack Obama became the first major party nominee to decline the general election grant entirely. The grant in that year was 84.1 million dollars, and John McCain accepted it. In 2012, no major candidate accepted public funds for the primary or for the general election. No court struck the general election grant, and no Congress repealed the matching payment structure during that sequence. The candidates declined the money, cycle after cycle, until participation by a major candidate became the exception described by its absence in 2012.

Two further entries measure the same decline. Participation in the tax checkoff declined for decades from its early peak, a trend best stated qualitatively because the direction of movement, rather than any single figure, explains the condition of the fund, and falling participation meant that the payment system rested on a narrowing base of affirmative public choices. Congress then removed one component outright. The Gabriella Miller Kids First Research Act, Public Law 113-94, signed on April 3, 2014, terminated the entitlement of the parties to payments from the fund for nominating conventions and redirected the amounts to pediatric research. Convention grants had formed one of the three payment streams built in 1974. After April 3, 2014, that stream no longer existed as an entitlement, not because a court had invalidated it, but because Congress ended it by statute. The first movement therefore leaves the success label in an untenable position. The expenditure ceilings enacted in 1974 were struck in 1976, the commission created that year in reconstituted form deadlocked on contested questions and lost its quorum between August 2019 and December 2020, and the public financing system sustained in 1976 was declined in stages between 2000 and 2012 before Congress terminated convention payments in 2014.

Litigants who challenged the earlier statute, and justices who questioned broad theories of campaign finance regulation in later cases, pressed a different objection, namely that regulation displaces money rather than reducing it and that restrictions on political spending burden speech. The displacement half of that argument draws support from party soft money after 1979. The amendments of that year, Public Law 96-187, signed on January 8, 1980, placed grassroots and party building spending by state and local party committees outside the statutory definitions of contribution and expenditure. That exclusion opened the channel through which national parties raised and spent soft money at scale, reaching about 495 million dollars in the 2000 cycle by figures of the Congressional Research Service drawn from Federal Election Commission data. A defender of the 1974 statute can answer that a later amendment, rather than the original design, opened that channel, and the answer has force, even as it separates the reputation of the statute from the record that followed enactment.

The failure label attached to the Bipartisan Campaign Reform Act also deserves its strongest statement. Senators John McCain and Russell Feingold, joined in the House by Christopher Shays and Marty Meehan, carried a statute that passed the House on February 14, 2002, by 240 votes to 189 and the Senate on March 20, 2002, by 60 votes to 40. The Bipartisan Campaign Reform Act, Public Law 107-155, signed on March 27, 2002, took effect in its core provisions on November 6, 2002. Title I prohibited national party committees from soliciting, receiving, or spending soft money and restricted the use of such funds by state and local parties for federal election activity, subject to the Levin amendment exception for certain activity with funds raised under state law within limits. Title II barred corporate and union treasury funding of broadcast, cable, or satellite communications that named a federal candidate within 30 days of a primary or 60 days of a general election and reached the relevant electorate, with disclosure required. Litigants who challenged the statute, joined by dissenting justices in the cases that followed, held that money restricted in one channel would travel through another and that the advertising restrictions burdened speech. The chronology offered for that criticism is real. In the 2004 cycle, organizations registered under section 527 of the Internal Revenue Code became the new channel, and the Campaign Finance Institute counted roughly 405 million dollars in receipts by 527 organizations active in federal elections in that cycle. America Coming Together and the Media Fund aligned with Democrats, while Swift Boat Veterans for Truth and Progress for America aligned with Republicans, and in May 2004 the Commission voted to delay deciding whether to regulate 527 organizations as political committees. After 2010, independent expenditure only committees accepting unlimited contributions and nonprofit organizations under section 501(c)(4) spending on elections with less disclosure became the growth channels for aligned groups of both parties.

The judicial record supplied further material for that label. In Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449 (2007), the Court narrowed Title II as applied, holding that an advertisement is the functional equivalent of express advocacy only if the advertisement is susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate. In Davis v. Federal Election Commission, 554 U.S. 724 (2008), the Court struck the Millionaire’s Amendment, which had raised contribution limits for candidates facing self-funded opponents. In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), decided on January 21, 2010, the Court struck, by five votes to four, the prohibition on corporate and union treasury funding of electioneering communications and independent expenditures, overruling Austin and the relevant part of McConnell v. Federal Election Commission. On March 26, 2010, the Court of Appeals for the District of Columbia Circuit decided SpeechNow.org v. Federal Election Commission, 599 F.3d 686, en banc, holding that contribution limits cannot constitutionally be applied to a committee making only independent expenditures, and that appellate decision, rather than Citizens United v. Federal Election Commission, made super PACs possible. The description of failure fails only when the evidence is asked to carry a verdict about the whole statute, because the center of the statute followed a different path.

The center of the Bipartisan Campaign Reform Act was Title I, and Title I survived. In McConnell v. Federal Election Commission, 540 U.S. 93 (2003), decided on December 10, 2003, the Court upheld Title I and Title II against facial challenge, sustaining the prohibition on national party soft money at the first and most direct opportunity for invalidation. That prohibition has never been invalidated. Citizens United v. Federal Election Commission overruled the relevant part of McConnell v. Federal Election Commission on electioneering communications and left the soft money prohibition undisturbed, and national party soft money did not return after the prohibition took effect on November 6, 2002. The contrast with the 1974 expenditure ceilings is exact. The ceilings fell at the first judicial test, within roughly fifteen months of enactment, while the soft money ban passed its facial test in 2003 and passed through the major decisions of 2007, 2008, and 2010 without invalidation. Reform organizations defended the ban as the core achievement of the 2002 statute, on the ground that national parties had raised about 495 million dollars in soft money in the 2000 cycle and that a prohibition aimed at the parties closed the channel at its destination. Litigants who challenged the statute answered that the ban burdened the speech and association of the parties and diverted funds toward less accountable organizations, and the growth of 527 organizations in 2004 and of super PACs after 2010 gave that answer an evidentiary basis. Neither position alters the operative legal fact. The prohibition remained law, and the channel that had carried about 495 million dollars in a single cycle remained closed to the committees that had used it.

The decision most often treated as the defeat of the 2002 statute also preserved a substantial part of it. Citizens United v. Federal Election Commission struck the treasury funding prohibition by five votes to four and upheld the disclosure and disclaimer requirements by eight votes to one, with Justice Thomas alone dissenting on that part. The disclosure requirements upheld there reached the electioneering communications that Title II had defined, and the disclaimer requirement of section 311 required communications governed by the statute to identify the source in the communication itself. A divided Court on who may spend from a corporate or union treasury was a nearly united Court on whether spending, once permitted, could be made visible and attributed. A further provision cuts against the failure label from the opposite direction. The 2002 statute raised the individual contribution limit from 1,000 dollars to 2,000 dollars and indexed the limit to inflation, producing 2,100 dollars in the first indexed adjustment. Hard money, raised under contribution limits and disclosed under the rules of the Federal Election Campaign Act, became available in larger lawful amounts than the unrevised limit from 1974 had allowed, and sponsoring members presented the prohibition and the higher limit as connected choices that redirected party fundraising toward money that was limited, reported, and attributable.

The two reputations fail in mirror image. The earlier statute is remembered for a comprehensive design that courts dismantled in part within two years, that a later amendment opened to soft money in 1979, that candidates abandoned in its presidential payment system between 2000 and 2012, and that entrusted enforcement to a commission marked by deadlock and by loss of quorum between August 2019 and December 2020. The later statute is remembered for restrictions that courts narrowed and struck, yet its central prohibition survived facial challenge in 2003, survived the decisions that dismantled neighboring provisions, kept national party soft money from returning, and carried disclosure and disclaimer requirements through an eight to one judgment in the very decision that struck its advertising restriction, while its raised and indexed limits enlarged lawful hard money fundraising. None of that record requires adoption of the position of the reform organizations, and none of it requires adoption of the position of the litigants who challenged both statutes or of the dissenting justices who argued that regulation displaces money and burdens speech. Each statute contains a provision that fell and a provision that endured, a channel that closed and a channel that opened, a judicial defeat and a judicial vindication. The simple framing survives only by selecting half of each record and discarding the rest, and the halves discarded in each case are large enough to reverse the verdict that the selected halves suggest.

The Verdict on FECA vs McCain-Feingold

A comparison that refuses a verdict has done only half its work, and this one turns on a single deciding factor that the record of both statutes exposes. The deciding factor is whether a statute regulates the source of political money or the route it travels. A source regulation asks where money comes from and forbids or restricts particular origins: a corporation’s treasury, a union’s treasury, an individual’s independent spending. A route regulation asks where money goes and governs its passage: how much may be given to a candidate or a party committee, through which accounts it may move, and what must be disclosed about the journey. The two statutes divided their provisions between those two ideas, and the courts, across four decades and two very different benches, sorted the provisions by exactly that line.

The verdict follows from the sorting. Everything in either statute that regulated the route money travels into candidates, parties, and disclosed committees has been sustained. The contribution limits of 1974 were sustained in 1976 and never fell. The disclosure provisions of 1974 were sustained in 1976, and the disclosure provisions of 2002 were sustained in 2010 by eight votes to one, with Justice Thomas alone dissenting on that part, in the same judgment that struck the advertising prohibition standing beside them. The soft money prohibition of 2002, which is a route regulation in substance because it governs what a party committee may receive and spend, was sustained in 2003 and no court has invalidated it since. Everything in either statute that restricted independent spending, whether the restriction was a ceiling on amounts or a prohibition keyed to the spender’s source, has been struck: the expenditure ceilings and the independent expenditure ceiling in 1976, the advertising prohibition in 2010. The pattern holds without an exception in either direction, and a pattern with no exceptions is the strongest ground a verdict in this field can stand on.

The claim the pattern supports deserves its short name, because it predicts as well as describes. Regulate the route, not the source. A legislature that wants a provision to survive judicial review has to write it as a rule about the passage of money into the regulated system: a limit on what a candidate or committee may accept, a requirement that a spender identify itself, a condition on the accounts a party may keep. A legislature that writes a provision as a rule about who may spend independently, or how much independent communication a treasury may finance, has written a provision the courts have struck in every generation in which they have been asked. The durability is not a judgment that route regulation is wise and source regulation foolish. It is a judgment about which instrument the constitutional doctrine of the field, fixed in 1976 and applied in every later generation, permits to operate.

That is why the earlier statute takes the verdict on the question this comparison asks, and the reason can be stated without adopting either side’s account of what campaign money does. The Federal Election Campaign Act, in its 1974 form, placed its weight on the route: limits on contributions, disclosure of contributions and spending, and a public financing offer that changed the route’s economics without commanding any speaker. The Bipartisan Campaign Reform Act placed its weight in two places at once. Its soft money title followed the earlier design and governed the route into party committees, and that title operates undisturbed. Its advertising title departed from the earlier design and restricted independent spending by reference to its source, and that title was narrowed in 2007 and struck in 2010. The later statute therefore confirms the verdict from inside its own text. The part of it that copied the earlier statute’s theory survived; the part that contradicted the theory did not.

The honest qualification belongs in the verdict rather than after it, because it limits what the verdict claims. Durability of design is not institutional success. The earlier statute’s commission deadlocks on contested questions and spent more than a year without a quorum between 2019 and 2020, and its public financing system was abandoned by the candidates it was built to serve, a record the counter-reading section lays out in full. The later statute’s central prohibition outperformed the earlier statute’s central financing institution by the simple measure of continued operation. A reader asking which statute built the healthier institutions, or which one its own beneficiaries kept using, would reach a different answer, and the evidence for that answer is in this article rather than suppressed by it. The verdict given here decides the narrower question the comparison is actually about, which design of regulation the legal system has allowed to work, and on that question the record of both statutes points the same way.

The two great arguments of the field are both respected by this verdict, because the verdict borrows from neither. The anti-corruption argument, pressed by the sponsoring members and by reform organizations in both generations, holds that money delivered to candidates and parties creates obligations that distort representation, and the courts credited that argument precisely where the money’s route made the obligation concrete. The expression argument, pressed by the litigants who challenged both statutes and by the dissenting and concurring justices who would have gone further, holds that restricting the financing of communication restricts communication itself, and the courts credited that argument precisely where a statute reached spending independent of any candidate. Each side won the cases its theory described best. The comparison’s lesson for any future drafter is the one the two statutes teach together: the field’s constitutional law does not ask whether a reform is well intentioned, or even whether it works, before it asks where in the flow of money the reform has chosen to stand.

Which Statute to Study First, and for Whom

The recommendation follows from the verdict and from the structural fact that the later statute is an amendment of the earlier one, so the reading order is rarely a coin toss. A student beginning the subject should start with the earlier statute, because the 1974 amendments supply the vocabulary, the institutions, and the constitutional distinction that the later statute presupposes. Without the contribution and expenditure distinction drawn in 1976, the litigation over the 2002 act reads as a series of disconnected results. With it, the same litigation reads as one argument continued. The student who then turns to the later statute should read it as a test of the earlier framework: a Congress that had absorbed the distinction, wrote one title inside it, and wrote another title against it, and received a split judgment for exactly that reason. Readers working through the pair in that order can follow the full study path for the legislation series to place both statutes in the wider sequence of federal lawmaking.

A staffer or a drafter has a different first need, and for that reader the later statute comes first, not as history but as a boundary map. The operative question in drafting is which provisions have survived review and which have been dismantled, and the 2002 act’s divided fate gives the answer in the form of decided cases: the party fundraising prohibition sustained and operating, the disclosure requirements sustained by eight votes to one with Justice Thomas alone dissenting on that part, the advertising prohibition struck. The earlier statute then supplies the doctrinal reason the boundary sits where it does, and its contribution limits supply the working text that any new route regulation would amend. A researcher tracing a particular flow of money, by contrast, should begin from the channel rather than from either statute: the soft money record belongs to the earlier statute’s amendments and the decisions that confined them, the 527 and super PAC record belongs to the later statute’s aftermath, and the two records join at the point where each closure displaced money into the channel the next statute, or the next case, had to answer. A journalist on deadline should begin with the four-axis table in this article and the disclosure provisions of both statutes, because the disclosure record is the part of the system that has operated continuously under both designs and is the part a reader can verify independently. For sustained work on the pair, a reader can keep your statute notes, citations, and case chronologies together free on VaultBook while moving between the two texts, and students preparing for examinations can practice and revise US government and civics material on ReportMedic alongside the comparison.

Reading the Two Statutes as One System

Read together, the two statutes stop looking like rivals and resolve into a single system’s two attempts at the same problem, separated by a generation and by a judicial decision that told the second drafters exactly where the first design’s strength lay. The earlier statute built the apparatus: the limits, the disclosure record, the commission, the public money. The later statute, written by legislators who had watched money escape that apparatus through the party accounts and the independent advertisement, tried to extend the apparatus over the escape routes, and succeeded where the extension followed the money’s route and failed where it tried to govern the money’s source. Nothing in that record supports treating either statute as a replacement for the other, and nothing supports grading one a success and the other a failure. What the record supports is a discipline: in this field, the provisions that last are the ones written about passage and disclosure, the channels that grow are the ones no provision reached, and the next statute in the sequence will be judged by the same distinction that judged these two.

Frequently Asked Questions

Q: What is the difference between McCain-Feingold and the 1971 act?

The 1971 act, comprehensively rebuilt by the amendments of 1974, regulated money flowing into the formal electoral apparatus: how much a person could contribute to a candidate, how much a campaign could spend, and what candidates, parties, and committees had to disclose. McCain-Feingold, the Bipartisan Campaign Reform Act of 2002, amended that act to regulate money flowing around the apparatus. Its first title prohibited national parties from raising or spending funds outside the federal limits, and its second title restricted corporate and union treasury funding of broadcast advertising that named a candidate shortly before an election. The earlier statute also built institutions, a commission and a public financing system, while the later statute built none and wrote rules for the existing commission to administer.

Q: Did McCain-Feingold close a channel the 1971 act opened?

In substance, yes, with one precision about which version of the earlier act did the opening. The channel was party soft money, and it was opened not by the 1971 act as signed but by the amendments of 1979, which placed grassroots and party building spending by state and local party committees outside the statutory definitions of contribution and expenditure. Commission allocation rules in the early 1990s enlarged the opening, and soft money grew from about 45 million dollars in the 1988 cycle to about 495 million dollars in 2000. Title I of the 2002 act closed the channel at the national party level by prohibiting national committees from handling such funds at all, and restricted their use by state and local parties for federal election activity.

Q: Which regulated candidates and which regulated outside groups, McCain-Feingold or the earlier act?

The earlier act regulated candidates and their committees directly. It limited what a candidate’s committee could accept, attempted to limit what a campaign could spend, and imposed the disclosure and recordkeeping duties on the committees themselves. The later act’s distinctive titles regulated actors outside the campaign. Title I governed national party committees in their capacity as fundraisers of unrestricted money, and Title II governed corporations and unions in their capacity as funders of broadcast advertising that no campaign controlled. The boundary was not absolute. The 2002 act also raised the contribution limits that candidate committees operate under and imposed the stand by your ad disclaimer on candidates’ own advertisements, and the earlier act’s disclosure system reached some spending by outside groups. The center of gravity, though, sat in different places: inside the campaign under the earlier act, outside it under the later one.

Q: Which survived the courts better, McCain-Feingold or the earlier law?

Each statute lost its restrictions on spending and kept its restrictions on contributions and disclosure, so the answer depends on how much of each design the surviving part represents. The earlier law’s core instruments, contribution limits, disclosure, and public financing, were sustained in Buckley v. Valeo in 1976, while its expenditure ceilings fell in the same decision. The later law’s soft money prohibition was sustained in McConnell in 2003 and was never invalidated afterward, while its advertising prohibition was struck in Citizens United in 2010, in a judgment that upheld its disclosure requirements by eight votes to one, Justice Thomas alone dissenting on that part. Measured by the share of its operative design left standing, the earlier law survived better. Measured by its single best-known provision, the later law’s party fundraising ban proved as durable as anything in the earlier act.

Q: Did both McCain-Feingold and the earlier act create new channels for money?

Neither statute set out to create a channel, but the operation of each closure produced one. Under the earlier act, the growth channel sat inside the statute’s own definitions: the exclusion of party building spending from the definitions of contribution and expenditure, widened by allocation rules, let soft money expand for two decades without any legislator voting to create a soft money system. Under the later act, the growth channel sat outside the statute’s jurisdiction: organizations registered under section 527 of the Internal Revenue Code in the 2004 cycle, and super PACs and nonprofit election spending after 2010, took money that the party ban had displaced. The difference matters for drafters. A channel created by a definition can be closed by amending the definition, as the 2002 act showed. A channel created by displacement into unregulated organizational forms has no single definition to amend.

Q: Which created a lasting institution, McCain-Feingold or the earlier act?

The earlier act, and the point is not close. The amendments of 1974 created the Federal Election Commission, which Congress reconstituted in 1976 after the courts struck its original appointment method, and which administered both statutes’ rules for the decades that followed. The same amendments built the presidential public financing payment system on the fund the Revenue Act of 1971 had created. The 2002 act created no agency, no fund, and no office; its provisions were handed to the commission the earlier act had built and to courts acting under an expedited review procedure. Lasting needs one qualification. The commission persisted as an institution even through deadlocked votes and a loss of quorum between 2019 and 2020, while the public financing system persisted as a structure after the candidates it served had stopped using it.

Q: Is the problem the source or the route of money in McCain-Feingold debates?

That question is the deciding factor of the whole comparison, and the two sides of the debate answer it differently. The sponsoring members and the reform organizations behind the 2002 act located the problem substantially in sources: corporate treasuries, union treasuries, and very large unrestricted gifts were treated as corrupting by origin, whoever received them. The litigants who challenged the act, and the justices who voted to strike its advertising title, located the problem in the restriction itself and treated the route of independent communication as protected regardless of source. Contribution limits and disclosure, the instruments both statutes used to govern the route money travels into campaigns, were sustained in both eras. Restrictions keyed to the source of independent spending were struck in both eras. The legal branch of the debate was therefore settled in favor of the route, even though the political branch of the debate continued on its own terms.

Q: Which should a student study first, McCain-Feingold or the earlier act?

The earlier act, because the later one presupposes it at every point. The amendments of 1974 supply the field’s basic vocabulary of contributions, expenditures, committees, and disclosure. The commission the earlier act created is the body that administered the later act. Most decisively, Buckley v. Valeo drew the contribution and expenditure distinction in reviewing the earlier act, and that distinction is the framework inside which every provision of the later act was later judged. A student who begins with the 2002 act meets a soft money ban without the two decades of soft money history that explain it, and an advertising prohibition without the 1976 reasoning that predicted its fate. Beginning with the earlier act and then reading the later one as a deliberate test of its framework turns a confusing sequence of statutes and cases into a single intelligible argument.

Q: Did McCain-Feingold replace the Federal Election Campaign Act or amend it?

It amended it. The Bipartisan Campaign Reform Act of 2002 is, in legal form, a set of amendments to the Federal Election Campaign Act, and the earlier act’s architecture continued underneath the new titles: the contribution limit structure, the disclosure and recordkeeping system, the Federal Election Commission, and the public financing provisions all remained in place, altered in places but never repealed wholesale. Treating the 2002 act as a replacement is one of the most common errors in accounts of the field, and it produces real confusion, because a reader who believes the earlier act vanished in 2002 cannot explain why its contribution limits governed the elections held after that year or why its commission administered the new prohibitions. The accurate picture is geological: the 2002 act is a layer laid over the 1971 and 1974 strata, and the older layers show through wherever the newer one is silent.

Q: Which act created the Federal Election Commission?

The earlier act, through its amendments of 1974. The commission Congress created in that year was given six members, with no more than three from one political party, and a requirement of four affirmative votes at the decisive stages of enforcement. The design had a short first life. Buckley v. Valeo struck the method by which some of its members had been appointed, holding that officers exercising executive functions could not be selected by Congress, and Congress reconstituted the commission in the amendments of 1976 under a lawful appointment structure. The 2002 act created no administrator of its own. When its prohibitions took effect in November 2002, they were administered from the first day by the commission the earlier statute had built, voting under the four vote rule the earlier design had imposed.

Q: Which act raised the individual contribution limit and indexed it?

The later act. The individual limit stood at 1,000 dollars per candidate per election from the amendments of 1974 until 2002, a figure Congress left unadjusted for twenty-eight years while prices and campaign costs rose around it. The Bipartisan Campaign Reform Act raised the limit to 2,000 dollars and, in the more consequential change, indexed it to inflation, so that the figure would adjust without further legislation. The first indexed adjustment produced a limit of 2,100 dollars. The increase sat oddly beside the act’s reputation as a pure restriction, and it was deliberate: the sponsors traded a higher lawful limit inside the regulated system for the prohibition on unlimited money outside it, an exchange that only makes sense once the act is read as redirecting money into the route the earlier statute had built rather than simply suppressing money in politics.

Q: What distinction from Buckley v. Valeo governed the fate of both statutes?

The distinction between contributions and expenditures. A contribution is a transfer of money into a campaign, and Buckley v. Valeo held that limits on contributions burden expression only modestly while serving the interest in preventing corruption and its appearance, so contribution limits could stand. An expenditure is money spent on communication itself, and the same decision held that ceilings on expenditures restrict the quantity of political speech directly, so the expenditure ceilings fell. Every later judgment in the field applied that template. The soft money prohibition of 2002 was sustained as a regulation of what party committees could receive, a contribution-side rule. The advertising prohibition was struck as a restriction on independent spending, an expenditure-side rule. Disclosure, which burdens neither transfer nor speech in the same way, was sustained in both 1976 and 2010.

Q: Why did the earlier statute meet its decisive court test within two years while the later statute’s took eight?

The difference lies in how the two challenges could be brought. The 1974 amendments were challenged on their face before the system they built had operated, and Buckley v. Valeo sorted the whole design in a single per curiam judgment in January 1976, striking the spending provisions outright. The 2002 act survived its facial challenge in McConnell in 2003, so its advertising title could only be reached afterward through narrower as-applied litigation: Wisconsin Right to Life narrowed it in 2007, and Citizens United struck it in 2010 in a case that squarely presented the prohibition. A statute that wins its first test forces its opponents to proceed provision by provision, and that slower path, rather than any difference in the courts’ pace, accounts for the eight years.

Q: Did FECA and McCain-Feingold take the same approach to disclosure?

Yes, and the agreement is one of the comparison’s load-bearing facts. The amendments of 1974 made disclosure a pillar of the earlier design, requiring committees to register, report contributions and expenditures, and keep the records behind the reports, and Buckley v. Valeo sustained that architecture in 1976. The 2002 act extended the same instrument to the new channel, requiring disclosure of electioneering communications that had previously escaped the reporting definitions. When Citizens United struck the later act’s advertising prohibition in 2010, it upheld the disclosure and disclaimer requirements in the same judgment, by eight votes to one, with Justice Thomas alone dissenting on that part. Disclosure is therefore the one regulatory instrument both statutes relied on and the one instrument no court struck under either statute, a continuity that separates it from every spending restriction the two acts contained.

Q: Which act built presidential public financing, and what happened to that system?

The earlier act built it, with a precision about origins that matters. The tax checkoff and the Presidential Election Campaign Fund were created by the Revenue Act of 1971, and the amendments of 1974 built the payment system on that fund: matching payments for presidential primaries, full grants for the general election, and grants for the nominating conventions. The system’s beneficiaries then abandoned it in stages. George W. Bush declined primary matching funds in 2000, both nominees declined them in 2004 while accepting general election grants, Barack Obama declined the general election grant itself in 2008, and no major candidate accepted public funds in 2012. Congress terminated the convention payments in 2014. The payment structure was left standing in the law while the candidates it was designed for conducted their campaigns entirely outside it.

Q: Which statute should a researcher read first for the disclosure rules?

The earlier act, because the disclosure system is its creation and its longest-lived component. The amendments of 1974 built the architecture that has operated ever since: registration of committees, periodic reports of contributions and expenditures, recordkeeping duties behind the reports, and administration of the whole record by the Federal Election Commission. Buckley v. Valeo sustained that architecture in 1976, narrowing some definitions as it did so. The later act amended the system at its edges rather than rebuilding it, most importantly by extending disclosure to electioneering communications, the pre-election broadcast advertisements that had previously escaped the reporting definitions. A researcher who masters the earlier act’s reporting structure first will find the later act’s additions legible as additions. A researcher who begins with the later act meets fragments of a system whose foundations are stated somewhere else.

Q: How do FECA and McCain-Feingold differ on corporate and union money?

The earlier system separated corporate and union money by route. Contributions from corporate and union treasuries to candidates were prohibited, a prohibition the courts sustained as late as FEC v. Beaumont in 2003. Independent spending from treasuries sat largely outside the earlier act’s effective reach after Buckley v. Valeo protected independent expenditures. The later act attacked the treasury side directly, prohibiting corporate and union treasury funding of electioneering communications, the broadcast advertisements naming candidates near an election. Citizens United struck that prohibition in 2010 while leaving the contribution prohibition untouched. The combined result of both statutes and the cases is therefore a split rule: treasury money may not be given to candidates, and treasury money may finance independent communications, subject to the disclosure requirements the courts upheld.

Q: Did either statute limit what candidates themselves could spend?

The earlier act did, and the attempt failed in court within two years. The amendments of 1974 imposed ceilings on total candidate expenditures and on the personal funds a candidate could devote to a campaign. Buckley v. Valeo struck both in 1976, reasoning that a ceiling on a campaign’s spending is a ceiling on the quantity of its communication and that limiting a candidate’s use of personal resources restricted the candidate’s own expression without the exchange of obligation that justifies contribution limits. The later act attempted nothing of the kind. Written a generation after that judgment, it accepted the framework the judgment had imposed and aimed at party fundraising and independent advertising instead. Its one candidate-facing financial device, the provision raising contribution limits for opponents of self-funded candidates, was itself struck in Davis v. Federal Election Commission in 2008.

Q: What is the deciding factor in the FECA versus McCain-Feingold verdict?

The deciding factor is whether a provision regulates the source of political money or the route it travels. Provisions written as source restrictions, forbidding particular treasuries or capping independent spending by whoever finances it, were struck under both statutes: the expenditure ceilings in 1976 and the electioneering communications prohibition in 2010. Provisions written as route regulations, limiting what candidates and party committees may receive and requiring that money’s passage to be disclosed, were sustained under both statutes: the contribution limits and disclosure of 1974, and the soft money prohibition and disclosure requirements of 2002, the second pair upheld in 2003 and 2010 respectively. The verdict that the earlier statute’s design proved more durable rests entirely on that sorting. It is a conclusion about which instruments the courts have allowed Congress to use, drawn from the judgments themselves rather than from either side’s theory of what campaign money does to politics.

Q: What should a student memorize about the difference between FECA and McCain-Feingold?

Four contrasts, one for each axis of the comparison. On target, the earlier act regulated money flowing into candidates and parties, while the later act regulated money flowing around them. On institutions, the earlier act built the Federal Election Commission and the presidential public financing system, while the later act built nothing and used the earlier act’s commission. On judicial fate, the courts struck the earlier act’s spending limits within two years in Buckley v. Valeo and the later act’s advertising prohibition after eight years in Citizens United, while sustaining contribution limits and disclosure under both. On consequence, the earlier act’s definitions let party soft money grow, and the later act’s prohibitions displaced money into 527 organizations, super PACs, and nonprofit groups. A student who can state those four contrasts, and name the route and source distinction that explains the third of them, holds the comparison in examinable form.