Let's say we decided to build a dam along a river. If we merely agreed to erect
a small barrier that the river would run around, flowing easily through new
channels and old ones, no one would celebrate our plan as a great achievement.
But that is how editorialists have hailed the Senate's passage of the
McCain-Feingold bill, despite the scant likelihood that the partial barriers it
erects will stem the flow of big money or seriously diminish its influence in
As passed by the Senate, McCain-Feingold virtually invites circumvention. The
bill bans unlimited soft-money donations to the parties and bars advocacy-group
advertising that mentions candidates during the 30 days before a primary and 60
days before a general election. I don't expect the limits on advocacy-group
advertising to survive a trip to the Supreme Court, nor do I think they should
(as I wrote in "The Loophole We Can't Close," TAP, JanuaryFebruary 1998).
But even if the Court upholds this restriction on political speech, parties and
advocacy groups should be able to evolve a new division of labor. Rationally,
the advocacy groups should concentrate their advertisements in the earlier
stages of campaigns, while the parties husband more of their hard money to pay
for advertising during the final phase. Hard money will actually be easier to
raise under the Senate's version of McCain-Feingold, which increases the caps on
individual contributions from $1,000 to $2,000 per campaign [see "Reform You Can
Take to the Bank," by Ellen S. Miller, on page 10]. Political action committees
(PACs), which can give up to $10,000 to candidates and $30,000 to parties, should
make a big comeback. And wealthy individuals remain unrestricted as direct
sponsors of political communication.
Then there is the potential of the state parties to assume more of a role in
campaign finance and undo the entire effort to limit contributions. Soft-money
donations to the national parties were originally supposed to go into party
building. While McCain-Feingold bans soft-money contributions to the national
parties, an amendment adopted by the Senate allows donors to state parties to
give up to $10,000 for party-building purposes. Ten-grand contributions spread
among state parties may make up at least part of the soft money that parties
lose at the national level. Federal authority to regulate state elections is
certain to be subject to constitutional challenge, so even this $10,000 limit
may not survive.
By rechanneling political contributions from parties, which are accountable in
elections, to interest groups, which are not, McCain-Feingold could have some
worrisome side effects. It would increase the dependence of parties and
candidates on advocacy groups, private interests, and wealthy individuals willing
to act as direct sponsors of independent political expenditures. If the law were
to be vigorously enforced, it would likely lead to new criminal investigations
into political communication among parties, candidates, and private groups and
individuals to determine whether they were coordinating their campaign efforts.
In short, for the sake of an ineffectual curb on political money, we could weaken
the parties at the expense of their interest-group partners. And we would subject
to federal inquiry and prosecution forms of communication that have been a normal
part of American politics during the entire history of the country.
The political parties already depend on partnerships with interest groups--the
Republicans, for example, on the National Rifle Association; the Democrats on the
AFL-CIO. Under McCain-Feingold, these partnerships would become even more
critical, particularly in early-stage campaign finance. Historically, the
parties have served a valuable function in aggregating and reconciling
interest-group pressures; they will be less able to resist such pressures in a
campaign finance system that drives them to use the groups as their surrogates
for raising money and communicating with the voters.
No one needs to tell the advocacy groups what's at stake. The outcome of the last
election offers a vivid example of how crucially their interests depend on which
party controls the White House and Congress. When the Republicans took control of
both branches, conservative groups saw their causes ascend to the national
political agenda, while liberal organizations saw theirs disappear. To make
illegal the efforts of such groups to influence elections would be astonishing.
They have a legitimate interest in electoral persuasion.
Most liberals used to agree that political speech deserves the highest level of
First Amendment protection from government investigation and control. Campaign
finance reform threatens to invert that understanding, subjecting political
communication to a new kind of policing. Some supporters of campaign finance
reform seem to think that these civil libertarian objections are silly or
alarmist. But if McCain-Feingold becomes law, it could easily become a basis for
federal authorities to investigate and prosecute their political opponents.
There is a right way to do campaign finance reform, and it involves public
financing of campaigns. The "clean money" initiatives have shown the way. Without
threatening anyone's free speech, public financing can put challengers on a more
equal footing with incumbents and attenuate the driving imperatives of the
current money chase. Forget about damming the river of independent expenditures.
Trying to block every possible pathway for private money is both dangerous and
futile. It is no advance for the cause of political equality if its pursuit
jeopardizes political liberty. And to put liberty at risk for the sake of so
ineffectual a piece of legislation as McCain-Feingold would be a huge mistake.