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© St. Petersburg Times, published March 31, 2002
When it comes to finding ways around rules we don't like, the human mind is remarkably inventive. The more burdensome a requirement is to our lives or interests, the more determinedly we find loopholes. Hence our tax code grows by volumes every few years.
This is why the McCain-Feingold campaign finance reform measure that President Bush signed Wednesday is doomed to failure. Money will find its way back into political campaigns just as naturally as our body's waste finds the colon. People who need favors from government on a regular basis, such as those who represent regulated business and industry, will always figure out how to be major contributors to the campaigns of elected officials, no matter how convoluted the path of money needs to be. And rich ideologues will do the same. In the end, the only ones constrained by the law's limits will be those not in the game: the general electorate. That's the goof here. McCain-Feingold will have the unintended consequence of making average folk feel even further alienated from the democratic process.
Unlimited soft money, which is the "evil" banished by McCain-Feingold, started life as a loophole. It was the way around the limits placed on contributions going directly to a candidate, limits the U.S. Supreme Court let stand in Buckley vs. Valeo, the court's seminal campaign finance ruling in 1976. In a later case, U.S. Supreme Court Justice Anthony Kennedy noted the irony of how the court's ruling in Buckley contributed to a political money-raising system that is far less accountable today: "The court has forced a substantial amount of political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits." McCain-Feingold will merely be the next installment of this farce. No more soft money to national political parties? Big contributors will give instead to freshly minted advocacy groups designed to promote "ideas" (the ideas being how their candidate is great and how the other guy stinks). The more the law prevents big money from flowing into the candidate's campaign itself -- where disclosure is required -- the more suspicious and secretive the flow of the money becomes.
McCain-Feingold tries to address the issue-advocacy loophole by regulating the broadcast of public interest messages mentioning a candidate within 30 days of a primary and 60 days of the general election. But this will be struck down by the courts, as were similar provisions in Buckley. If the First Amendment stands for anything it is that groups of people can join together to promote or disparage a candidate's position on issues as an election draws near. The Supreme Court has written repeatedly that "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office."
To my mind and that of John Samples, a policy analyst at the Cato Institute, the only outstanding question is whether the U.S. Supreme Court will approve McCain-Feingold's ban on soft money. Regrettably, we both agree the court probably will.
There are at least five and probably six votes on the court for the proposition that Congress can control substantial contributions going to a political party. The justices' theory is that large donations are of marginal free speech interest easily overcome by the government's interest in reducing political corruption. I couldn't disagree more. Political parties are our ideological surrogates and giving money to them is the way many Americans express their support for the way government ought to be structured. By letting Congress take away our ability to underwrite political parties with whatever resources we can muster, the court would be selling out our right to try and change the course of government.
The court would also be dooming the prospects for any new and minor political party from ever gaining a foothold. It takes the seed money of millionaires to generate support for a nascent political movement. Would the formerly vigorous Reform Party have gotten off the ground were it not for the deep pockets of founder Ross Perot?
The world of McCain-Feingold is a fantasy. Short of gagging the populace and freezing all bank accounts, nothing Congress does will effectively plug all the ways big money flows into political advocacy.
Just as Justice Kennedy warned about the unintended consequences of campaign finance rules, the newest incarnation will simply inspire new ways of hiding large political contributions, making the system appear even more manipulated and inscrutable. And the electorate will respond by disengaging further.