One of the best by-products of the U.S. Senate’s obsession with campaign finance reform is that for two dramatic weeks it has acted like it’s supposed to: as a deliberative body fashioning legislation on the merits with unpredictable results. It was, as one Washington Post account put it, “an unaccustomed spectacle...a serious, substantive debate on a matter that goes to the heart of American democracy.”
When the dust settled Monday, the Senate had approved a version of the campaign finance bill that John McCain (R-Ariz.) and Russell Feingold (D-Wis.) have been pushing tirelessly for almost half a decade.
The bill that passed the Senate attacks the problem of money in politics from several angles: banning unregulated contributions of so-called soft money to national political parties; placing higher limits on regulated hard-money contributions to political candidates; raising the contribution limits even higher for candidates challenged by wealthy opponents who self-finance extravagant campaigns; restricting certain types of political advertising by corporations, unions, and advocacy groups in close proximity to elections; guaranteeing that candidates can buy time for television ads at the lowest possible rate; and creating new provisions on filing and disclosure of election financing.
Determining whether McCain-Feingold really amounts to good law that enhances democracy is tricky. Campaign finance reform is an arcane enterprise, rife with contradictions and the risk of unintended consequences. The likely effects of any given piece of reform are hard to determinewe see this clearly in the lack of consensus among pundits and politicians about whether the bill’s provisions will harm Democrats or Republicans more in the long run.
Everyone seems to agree that McCain-Feingold’s soft-money ban, if ultimately enacted, will seriously diminish the budgets, and hence the role, of the two major national parties. Reform opponents would have us believe that this spells the end of democracy as we know it. Listen to Republican Sen. Mitch McConnell of Kentucky, who passionately defends soft money and opposes reform: “The two major parties are the big tents where multitudes of individuals and groups with narrow agendas converge to promote candidates and broad philosophies about the role of government in our society.... Unrestrained by the balancing effect of parties, which bring multiple interests together, America’s politics are likely to fragment.”
It’s hard to imagine a less persuasive brief against McCain-Feingold. The national parties are themselves the premier campaign finance shakedown artists. During the last federal election cycle, the two parties raised more than $463 million in unregulated soft moneyroughly double what they grabbed in the 1996 cycle and more than five times the amount raised in 1992. Much of this money has been used to poison the process with phony issue ads that blatantly circumvent election laws regarding campaign disclosure. Far from McConnell’s “big tents” promoting “broad philosophies about the role of government,” the parties are handmaidens of mostly corporate interests who blithely buy access through soft money.
(And before conservative readers go apoplectic about the unstated influence of labor unions, don’t forget that in the 2000 election cycle, soft-money contributions tied to business were more than 16 times greater in the aggregate than soft-money contributions from labor. The Democratic Party received over 98 percent of labor’s soft money, yet even that total is less than one-sixth of the amount that the Demo-crats raised in soft money from business interests.)
But will putting the parties out of the soft-money game drive down the cost of American politics? This is admittedly unlikely for two reasons. First, the version of McCain-Feingold that passed the Senate doubles the limits on hard-money contributions to candidatesa provision that Tennessee Republican Sen. Fred Thompson sponsored after his own preference for tripling the limit went nowhere. More hard money also will enter the system through a complex new rule that sets even higher limits for candidates running against self-financed gazillionaires.
Advocates of higher ceilings on hard money make much of the fact that the individual contribution limits per election have been fixed at $1,000 since 1974, with no adjustments for inflation. However, given that only a tiny proportion of the population actually contributes to political candidates at this level, it is less than compelling to suggest that the present limit imposes a constraint that threatens democracy.
Second, reform skeptics worry that a soft-money ban simply will empower organizations representing special interests. If corporations, unions, and wealthy individuals can no longer drop heaps of unregulated cash on the parties, the argument goes, they will funnel this money through private advocacy groups, who will then do the dirty work on behalf of candidates through independent expenditures. Admittedly, money in politics is like water on an old foundation: It will more than likely find its way in. But the prospect that contributions will shift wholesale from political parties to advocacy groups is unconvincing. Individuals and corporations who have been complaining about the soft-money shakedown should feel less tempted when a private interest group, rather than a major political party, is shaking the tree.
Even if lots of soft money migrates into independent expenditures, a case can be made that the system still will be significantly better off. A key problem with soft money is that most of it is raised directly by elected officialsnot, as some might think, by party hacks working out of a back office somewhereoften with the understanding that the party will use it to help a particular candidate. Here the taint of corrupt influence on the legislative process is plain as day. Eliminating the soft-money loophole means putting some institutional distance between lawmakers and their financial patrons. Will this turn American politics into an Elysian model of egalitarian democracy? Hardly, but it is an eminently reasonable (if limited) way to start undoing the abuses of campaign finance that have been creeping into the system over the past two decades.
McCain-Feingold has serious hurdles to clear before becoming law. First up is the U.S. House, which passed similar legislation by a wide margin in 1998 and 1999. But the stakes are higher now that the Senate has finally acted, and GOP exterminator Tom DeLay will do all he can to derail a House version of McCain-Feingold. House Democrats will be trying to get the Senate version passed intact to avoid a House-Senate conference committee, which is all too often a graveyard for controversial legislation. A bill that survives all of this then faces the White House wildcard: President Bush opposed many of the tenets of McCain-Feingold during his campaign, but he has signaled more recently that he might sign the bill.
If McCain-Feingold is enacted, the action then shifts to the courts, with challenges expected to several provisions that raise First Amendment concerns. Most constitutionally suspect is the attempt to regulate issue advertising by private groups. Civil libertarians (joined by cynical opponents masquerading as civil libertarians in order to sabotage reform) think the bill goes too far in controlling certain types of political messages from corporations, unions, and interests groups in the run-up to elections. Some also believe that the soft-money ban itself is unconstitutional, limiting as it does the ability of interest groups to “speak” through political contributions.
Supporters of McCain-Feingold counter that its language is carefully crafted to stay within the delicate perimeter of allowable restrictions on political activity that have been carved out by the federal courts over the last 30 years. The soft-money ban seems sustainable, but the restrictions on independent advertising are clearly at risk. Fortunately, the Senate rejected language introduced by Tennessee Republican Bill Frist that would invalidate the entire law if any one part of it were successfully challenged in court. That amendmenta “non-severability” provision clearly designed to undermine the rest of the billshowcased Frist as a sanctimonious enemy of reform.
And so a fortnight of Washington drama ends with a version of McCain-Feingold, unceremoniously offed by hostile Republican filibusters several years in a row, finally moving out of the Senate to confront its political fate. Some critics believe the system is fine the way it is, and see McCain-Feingold as a solution in search of a problem. Others imagine dire unintended consequences that will corrupt the system even further, as if such a thing is possible. Still others see the constitutional risks of some of its provisions as grounds to scuttle the entire enterprise. The rest of us think it’s worth a shot.
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