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Archive for Saturday, March 30, 2002

Reform bill won’t stand up in court

March 30, 2002

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— For those of us skeptical about campaign-finance "reform," these are comforting times. Nearly everyone in the nation's capital is impressed that the House and Senate passed a campaign-finance "reform" bill that the president could sign. But nearly no one, including the president, believes the measure as a whole will pass constitutional muster in the courts. This is cynicism masquerading as civic virtue.

As everybody knows, the basic element of the Shays/Meehan/McCain/Feingold measure is a ban on unregulated soft money; that is, cash contributed to parties that the parties, in turn, earmark for campaign expenses. The besetting sin of soft money is that it enables labor unions, corporations, public policy organizations and other interested entities to circumvent regulations limiting the amount of cash anyone or anything can spend on specific campaigns. Thus, while rich executives or wealthy trial lawyers are limited to contributing $1,000 per candidate ($2,000 after "reform" takes effect), they and their affiliated organizations can endow the national parties as they see fit.

Some opponents of "reform" have argued that a ban on soft money will destroy the two major parties, which is surely an overstatement. It will certainly make fund-raising more difficult for the national committees, but only in the short term. With "reform," the Republican skill at raising hard money will put the Democrats at a temporary disadvantage. In the fullness of time, however, both parties will adapt to new circumstances. They always do. All the aspects of modern political fund-raising that so disturb reformers soft money, political action committees (PACs), etc. are creatures of the last great wave of campaign-finance "reform," enacted in the post-Watergate 1970s.

This latest specimen of campaign-finance "reform" is similarly blessed with loopholes that, if scrupulously observed and sanctioned by the Federal Elections Commission, should keep the spigots unclogged. Unions and trade associations will now contribute to state parties instead of national committees, for example, and accomplish their main objectives. It could hardly be otherwise. For the fact is that money is what makes politics vital, keeps parties alive, underwrites campaigns, promotes ideas and allows ordinary citizens alone or in groups to influence the political process.

Is this a bad thing? The received wisdom is that the political process is groaning under great mountains of cash, and where finance is concerned, corporate America enjoys an unfair advantage. The evidence, however, is decidedly mixed. A big, long, complicated, media-driven presidential campaign costs less than Hewlett-Packard will spend to merge with Compaq. And as for corporate clout, the millions of dollars spent by Enron on selected political candidates did nothing to prevent the Bush administration from shutting the door in its face when bankruptcy loomed. Yes, money can purchase access for environmental lobbies, unions and chemical manufacturers, but it hardly guarantees success. Moreover, Congress persists in passing laws that favor segments of society (welfare moms, etc.) devoid of corporate benefactors.

The truth is that money is not only ubiquitous in politics, it is essential and, on the whole, beneficial. It enables interested people to band together to influence public policy, it allows candidates to challenge incumbents, it counteracts false claims or disinformation campaigns, it supports a party system that ensures against political anarchy. One could argue that the problem of American politics is not too much money but not enough, and what money there may be is overregulated by "reform" that is largely designed to protect people in office. Given a choice between unlimited amounts of private money and full disclosure, or a political process administered by federal agencies and financed by public revenue, most Americans would prefer to keep the government at a distance.

Anyone who doubts that campaign-finance "reform" is, at heart, an incumbent-protection measure need only consider its most egregious element: Limitations on political issue advertising within 60 days of federal elections. It is difficult to see how any court could sustain such a clear violation of the right of citizens to express their political views in public: The Constitution is comfortably explicit that "Congress shall make no law abridging the freedom of speech." But if you're a senator or a member of the House of Representatives, it's not hard to understand the attraction of "reform" that criminalizes dissent, or bans public criticism of your record or position.

And the only thing uglier than congressional censorship is media support for stifling free speech. Severely restricting issue advertisements helps incumbents stay in office, and enhances the power of the press to control debate. Newspapers and television are important features of democracy, but they don't deserve a federally sanctioned monopoly on opinion


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Philip Terzian is the associate editor of the Providence Journal.

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