The prominent sociologist Alan Wolfe once observed that "a policy can be a bad idea in theory and a good one in practice." He was referring to affirmative action, but the sentiment applies keenly to the campaign finance legislation that President Bush is about to sign into law. The measure, which takes effect after this year's election and is widely touted as the biggest overhaul of campaign spending laws in a generation, represents a flawed compromise that falls far short of the meaningful reform we need. But even with its shortcomings, our money-infested political system is better off with it than without it.
This is true even if parts of the bill fail to pass constitutional muster. Opponents insist that the thirst for reform is being quenched at the expense of constitutionally protected free speech, and they have already assembled a legal dream team to challenge it in federal court. Reform backers have their own heavyweight squad of lawyers warming up. The bill provides for an accelerated appeal path through the federal judiciary; expect an inevitable and expeditious Supreme Court review.
Is it unconstitutional? The piece of the bill that has attracted the most scrutiny as a possible threat to free speech is the restriction on television and radio ads in the period right before a primary or general election. In the landmark 1976 case of Buckley vs. Valeo, the Supreme Court said that Congress can regulate independent spending (money spent by organizations other than actual campaigns) on political ads only if they engaged in "express advocacy"—explicit appeals asking voters to favor or oppose specific candidates.
In the years since, the parties have been collecting piles of unregulated money and spending it on ads that straddle the legal fence constructed in the Buckley case—attacking candidates with words and images but stopping just short of urging votes for or against a specific candidate. The new law tries to shut down this charade in two ways. First, it bars the unlimited, unregulated contributions (so-called "soft" money) to national parties that have financed most of these ads. Second, it prevents organizations (corporations, unions, nonprofits) from using soft money to fund broadcast ads that refer in any way to federal candidates in the last 30 days before a primary or 60 days before a general election.
Critics say the new rules on ads muzzle free speech by silencing legitimate political opinion. The ACLU tried to underscore this point a couple of weeks ago by running a radio ad in House Speaker Dennis Hastert's district calling for him to allow a floor vote on a particular piece of legislation. Because the ad came within 30 days of the Illinois primary, in which Hastert was running for reelection, it presumably would be prohibited under the new rules even though the ad didn't support or oppose Hastert's reelection. (Disclosure: I'm president of the ACLU of Tennessee, but I part company with the ACLU's position on this issue.)
But the new law doesn't ban ads by outside groups referring to candidates; it merely regulates how they are bankrolled.
Organizations can still run all the ads they want referring to candidates as long as they play by the same contribution limits and disclosure rules that candidates have had to follow for decades. This means raising "hard" money through disclosed contributions that cannot exceed certain limits. The soft money ban itself also may be challenged as an improper limitation on participation. But the Supreme Court in Buckley and subsequent cases has said repeatedly that reasonable limits on political contributions are constitutionally justifiable as a way to forestall the appearance of corruption in government. This time around the court could decide that the new law goes too far with restrictions on who can run ads, when and how. But it's hardly a stretch to imagine that the new rules will hold up. Usefully, the law contains a severability provision, which means if one piece of the law falls to a court challenge, the rest of it remains in force.
Constitutional issues aside, critics say the new law won't so much reduce the role of money in politics as just shift it around. They have a point, but the shift is salutary. With soft money gone, corporations and unions can do their thing independently rather than throwing cash at the national parties. But there is reason to believe they'll spend less of it, partly because the new rules for late election season ads will make it harder to come up with the money, and partly because a lot of organizations will see the end of the sofoney shakedown by the parties as a welcome excuse to put their resources somewhere else. Even if the big sofoney players do choose to spend just as much independently, the direct link (and its inevitable corrupt taint) between parties and big spenders will have been severed.
To build a coalition for even this mild reform, supporters in Congress had to agree to hefty increases in the limits on regulated "hard" money contributions. Incumbents will still spend more of their time grubbing than legislating, and challengers all too often will have to be wealthy or well connected. Only publicly financed campaigns—an astonishingly sensible idea that is starting to show its worth in a few adventurous states—will genuinely restore democracy to political campaigns. But in the meantime, the new law brings worthwhile, if modest, improvement. Bad in theory, good in practice.
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