The swift unraveling of the campaign-finance-reform law that went into effect a day after the last election should come as no surprise to the public, to lawmakers, to the journalists who've chronicled its shredding in recent weeks -- or even to the reform groups that fought so hard for it. What is hard to fathom is that a law that took more than two decades to pass and that is so modest in its ambitions has been so thoroughly eviscerated so quickly.
Understanding how this happened provides a good lesson in how Washington's political culture is so resistant to change. One of the leading reformers, Scott Harshbarger, president of Common Cause at the time the reform was passed, told me, "The amount of money will not change. The issue is just as serious, just as complicated and just as extreme as it's always been, but it will be pushed further away if the regulations and the court support us." The problem is, that's a real big "if."
In March, President Bush signed the Bipartisan Campaign Reform Act without fanfare and without conviction. Even before it was signed, plans had been devised by the political parties to thwart its intent. Indeed, certain compromises were made in the final stages of the legislation that signaled trouble. Within an hour of its signing, lawsuits were filed to gut its provisions. And while those lawsuits are wending their way through the courts -- with a final determination to be made by the U.S. Supreme Court late next spring -- the law already has been substantially weakened by the actions of the Federal Election Commission (FEC), by the lack of public outcry in defense of the law and by the bold moves of political parties to directly challenge the law's ban on soft-money activities.
The fiercest resistance to change has come from the Republican and Democratic national committees. They never supported the law's changes that cut off the lifeblood -- soft money -- of political party fundraising. They certainly didn't want to alter the natural incumbent advantage built into the current fundraising system. And so they have pulled out all the stops to declaw the new rules: lobbying the FEC to weaken the regulations, filing lawsuits to challenge the law's constitutionality and setting up sham -- supposedly unrelated -- committees to funnel soft money to the parties.
They have gotten much of what they wanted from the regulatory commission. The Center for Responsive Politics' FEC Watch , a nonprofit public-interest group that tracks the flow of political money and monitors regulatory shenanigans at the FEC, told me that while the new law clearly prevents federal candidates and officeholders from accepting or soliciting soft money, the commission has defined "soliciting" very narrowly. As such, it's allowing federal candidates and officeholders to solicit soft money at state and local party fundraising events. In another direct affront to portions of the law designed to prohibit coordination between candidates and free-standing soft-money committees, the FEC is going to permit candidates to coordinate ads with any third party -- corporation, labor union or foreign national -- as long as the ad runs more than 120 days before the election and does not expressly advocate the election or defeat of a candidate. This means that a candidate can write the ad, decide where it is to run and how often, and ask a foreign national to pay for it, as long as the payment does not go through the candidate. As a practical matter, it means that all of the sham issue ads we saw in the last cycle will now be run at least 121 days before the election and will be fully coordinated with -- as well as written and produced by -- the candidate. In an early primary state such as California, candidates will be able to run these ads from March (after the primary) through July.
Furthermore, the commission has said that it will ignore most activities taking place before Nov. 7 in deciding whether a group will be considered affiliated with a national party committee. This effectively sanctions one of the boldest moves made earlier this year by the Republican and Democratic committees to undermine the law: the setting up of "shadow" organizations that can continue to accept soft money. The parties called the FEC's bluff.
The trend has been set. As Harshbarger said, "The FEC drilled more loopholes in McCain-Feingold in the last few months than the previous FEC did to the previous law in the last 20 years." The FEC-issued regulations are vague, inconsistent with the law and unlikely to provide the tough enforcement necessary to make it work.
While it won't quite be business as usual in the world of soft money, when it comes to big money in politics, little will change. The new law did not even attempt to establish a balance between the power of the contributors and the power of the people; indeed, in some instances it made it worse. "You'd have to be naive to think that this will push money out of politics. It will just push it around," Harshbarger said.
To see what he means, one need look no farther than the various avenues available to those who wish to circumvent the law. For starters, Congress agreed to double individual contribution limits. It was easy to predict that simple compromise would enhance the influence of the fundraisers who broker millions of dollars to candidates. Remember the Bush pioneers? They will be even more influential because they can now broker contributions at $2,000 a shot. So, too, will the bundlers -- those who garner individual contributions from specific companies and then hand them over to candidates in one big check. The new reform law also allows federal candidates and officeholders to solicit an unlimited amount of soft money for tax-exempt organizations, and it permits the state and local party committees to solicit up to $10,000 per donor per year for voter registration activities. Another casualty of reform? Disclosure. Current FEC Commissioner Bradley Smith conceded, "It will be a bit more difficult for people to track the money" under the new system. When you're worried about reform, remember to give with one hand but taketh away with another.
Probably the largest growth area for big money in politics will be in the supposedly independent 527 committees -- political committees that can, with minimal disclosure rules, raise and spend unlimited amounts of soft money from corporations, unions and individuals. They can't directly advocate for the election or defeat of a candidate and they are supposed to have no direct ties to the political parties -- but they can spend their money on issue ads, voter identification, phone banks and get-out-the-vote efforts. Public Citizen chronicled the dramatic increase of these groups in the 2002 election cycle, finding that 175 of the leading groups marshaled some $133.3 million between January 2001 and the end of November 2002.
Why have the politically powerful gotten away with all this? Because there is no real counterbalance to the forces allied against the law. To the endless frustration of reform groups, the public has been notoriously difficult to engage on this issue. Reforming the way elections are financed has proven a Sisyphean task. And it is certainly not for the short-winded.
Ellen S. Miller is publisher of TomPaine.com. She founded and directed the Center for Responsive Politics and Public Campaign and was a senior fellow at The American Prospect.
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