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A fighting chance

The new campaign finance bill isn't perfect, and it raises as many questions as it tries to resolve. But the Supreme Court was right to let it fly.

In affirming the constitutionality of a landmark campaign finance law, the U.S. Supreme Court may have served its most important role by simply parsing political fact from fiction. "It is the manner in which parties have sold access to federal candidates and officeholders that has given rise to the appearance of undue influence," the court majority wrote Wednesday. "Implicit ... in the sale of access is the suggestion that money buys influence."

That money buys influence is obvious to those without either, but the rise of unregulated "soft money" over the past three decades has produced an unseemly bidding war that extended even to nights in the White House. As the court noted, more than half the big-money givers in the past two elections wrote six-figure checks to both political parties. Such a practice leaves "room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology."

These distinctions are relevant in the constitutional debate because they temper the claims, such as those made by Justice Clarence Thomas in dissent, that Congress was merely bidding to rein in the "marketplace of free ideas." The reality is that most members of Congress didn't want to rein in anything, much less the flow of secret million-dollar campaign contributions. But Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., persisted in their relentless attack and ultimately produced a bill with such populist support that even an unenthusiastic President Bush was forced to sign it.

This is not to suggest that the Bipartisan Campaign Reform Act of 2002 strikes the perfect balance between rooting out corrupt fundraising and protecting legitimate speech. Unfortunately, it does not. Though it appropriately bans the unregulated, undisclosed flow of soft money, the law also takes an uncharted and unwelcome venture into the campaign activities of legitimate interest groups.

The law's provision limiting the types of commercials a private group can air within 60 days of a federal general election - or within 30 days of a primary election - draws from an understandable concern. McCain and Feingold knew that if they shut down soft money for political parties to air candidate commercials, the private interest groups would surface to take the place of the parties. They are probably right, but their solution, and the court's acceptance of it, are still premature at best. Why not first force the Federal Elections Commission to actually pursue those who would circumvent the soft-money ban through such tactics? That way, the existing interest groups that long have sought, legitimately, to influence elections could still pursue campaign activities without restriction.

The reality of the new campaign law is that, like the previous ones, unscrupulous candidates and moneyed interests will find ways to get around it. Billionaire George Soros already has pledged $10-million to a liberal group, America Coming Together, which is fine so long as the group doesn't use that money for candidate campaign commercials within 60 days of the election. The NRA is talking about buying a news media outlet if that's what it takes to make sure it elects candidates who are obedient to the gun lobby. President Bush already has found a way to harness as much as $200-million the more traditional way, tapping into the regulated, disclosed hard-money contributions that are limited to $2,000 a person.

The court majority, led by Sandra Day O'Connor, took note of that impenetrable link between money and politics. "We are under no illusion that (the law) will be the last congressional statement on the matter," the court wrote. "Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day."

There indeed will be another day, because the Supreme Court assured as much. That's the good news. The alternative, which would be to close the nation's eyes to the escalating selloff of Congress, is unthinkable.