As much as I understand the frustration of campaign finance reform proponents, who believe that the only way to encourage grass-roots campaigns and remove the corrupting influence of special interests is to restrict contributions, their instincts are wrong. Regulation will only beget innovation - money will find a way - and campaigns by political newcomers can only be launched when really wealthy donors seed the process.
Reformers are kidding themselves if they think the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold after its main sponsors, Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., will solve the problem of money in politics. Those in regulated industries, such as pharmaceuticals and fossil fuels, are simply too motivated to stand on the sidelines. As are rich ideologues. Instead, the new rules will drive an obfuscation industry in which clever lawyers and accountants find new ways to redirect money to favored candidates. The only change will be that the public will have a tougher time figuring out where all that money came from.
As U.S. Supreme Court Justice Antonin Scalia said to Deputy Solicitor General Paul Clement during last week's oral argument on McCain-Feingold, "If history teaches us anything, (it) is that when you plug one means of expression, the money will go to whatever means of expression are left."
This cat-and-mouse game won't have much impact on the role of money in elections but it will continue to eat away at the First Amendment and distort the political process.
For instance, the advent of "soft money," money given to political parties rather than to candidates, is a direct result of the 1974 campaign finance reform effort that limited campaign contributions to $1,000. This has generated huge sums for the parties, culminating in the 2000 election cycle, where the major political parties raised $498-million in unlimited soft money donations.
Obviously, Congress' earlier reforms didn't eliminate the money but merely redistributed it; and in the process shifted political power from individual candidates to the parties. This party dominance has added to the malaise of the electorate, who see every election as same-old, same-old and tune out. When candidates and public officials know that any streak of independence may shut down the funding pipeline, fewer new ideas and fresh approaches are tried.
The reforms also made politics more inscrutable. At least, had the millions in soft money been allowed to go directly to candidates, the public could have tracked the donor-candidate connection. But with the money going to the parties, the public may perceive that influence is being bought in a way it can't follow - encouraging the electorate to disengage further.
McCain-Feingold answers the problems of current regulations by adding more, including a ban on soft money. Obviously, if the parties themselves can no longer collect the loot, they'll just set up entities that can. To this reformers say, "Okay, we'll just quiet all groups before an election." The law prohibits broadcast advertisements that mention a candidate's name within 60 days of a general election and 30 days of a primary, unless the money used to pay for the ads comes from a campaign or political action committee that limits the amount of money raised from each contributor.
So, to address the problem of money in politics, Congress has barred public interest groups from educating the public during the throes of an election. The plan is to save democracy by dismantling the Constitution.
Reformers are also misguided in their view that money is the destroyer of political diversity. In fact, big donations early on are the only way nascent third parties and dark horse candidates can generate the name recognition necessary to establish credibility.
When Eugene McCarthy ran for president in 1968, his candidacy was dismissed by the Democratic establishment. It was only due to big donations such as a $220,000 contribution from Steward Mott, a rich liberal, that McCarthy was able to make a viable bid. Ross Perot sank $100-million of his fortune into his run for president in 1992 and the establishment of the Reform Party. Could a new, small third party have gotten off the ground without that kind of investment?
Rather than encouraging the creation of third parties and outsider candidacies, McCain-Feingold closes them down. Talk about an incumbent's protection act.
As to broadcast limits, the restriction is a constitutional abomination, cutting off vital public discourse just when it is most valuable. To tell issue-oriented groups such as the American Civil Liberties Union, the Sierra Club and the National Rifle Association that they cannot engage the public as an election nears, essentially leaves communicating with the electorate exclusively to Fox News commentators and the major political parties.
And creating a PAC is no alternative for public interest groups whose function is to put forth issues in a nonpartisan manner. The rules for PACs span more than 50 pages in the Code of Federal Regulations - a complex web that only supremely well-funded groups, such as those funded by the oil industry, can follow. Moreover, controversial public interest groups often guarantee their donors anonymity, protecting them from possible reprisals. PACs require disclosure.
McCain-Feingold will sweep out of the public debate those voices that truly represent little-guy America. Public interest groups, whose thousands of members give money in order to amplify their own voices, will be silenced on television and radio during elections.
Reformers may have good intentions but their rules are demonstrably harmful to freedom. It is up to the U.S. Supreme Court to say so.