Let's say we decided to build a dam along a river. If we merely agreed to erecta small barrier that the river would run around, flowing easily through newchannels 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 theMcCain-Feingold bill, despite the scant likelihood that the partial barriers iterects will stem the flow of big money or seriously diminish its influence inpolitics.
As passed by the Senate, McCain-Feingold virtually invites circumvention. Thebill bans unlimited soft-money donations to the parties and bars advocacy-groupadvertising that mentions candidates during the 30 days before a primary and 60days before a general election. I don't expect the limits on advocacy-groupadvertising 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 andadvocacy groups should be able to evolve a new division of labor. Rationally,the advocacy groups should concentrate their advertisements in the earlierstages of campaigns, while the parties husband more of their hard money to payfor advertising during the final phase. Hard money will actually be easier toraise under the Senate's version of McCain-Feingold, which increases the caps onindividual contributions from $1,000 to $2,000 per campaign [see "
Reform You CanTake 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, shouldmake a big comeback. And wealthy individuals remain unrestricted as directsponsors of political communication.
Then there is the potential of the state parties to assume more of a role incampaign finance and undo the entire effort to limit contributions. Soft-moneydonations to the national parties were originally supposed to go into partybuilding. While McCain-Feingold bans soft-money contributions to the nationalparties, an amendment adopted by the Senate allows donors to state parties togive up to $10,000 for party-building purposes. Ten-grand contributions spreadamong state parties may make up at least part of the soft money that partieslose at the national level. Federal authority to regulate state elections iscertain to be subject to constitutional challenge, so even this $10,000 limitmay not survive.
By rechanneling political contributions from parties, which are accountable inelections, to interest groups, which are not, McCain-Feingold could have someworrisome side effects. It would increase the dependence of parties andcandidates on advocacy groups, private interests, and wealthy individuals willingto act as direct sponsors of independent political expenditures. If the law wereto be vigorously enforced, it would likely lead to new criminal investigationsinto political communication among parties, candidates, and private groups andindividuals to determine whether they were coordinating their campaign efforts.In short, for the sake of an ineffectual curb on political money, we could weakenthe parties at the expense of their interest-group partners. And we would subjectto federal inquiry and prosecution forms of communication that have been a normalpart of American politics during the entire history of the country.
The political parties already depend on partnerships with interest groups--theRepublicans, 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 lastelection offers a vivid example of how crucially their interests depend on whichparty controls the White House and Congress. When the Republicans took control ofboth branches, conservative groups saw their causes ascend to the nationalpolitical agenda, while liberal organizations saw theirs disappear. To makeillegal 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 ofFirst Amendment protection from government investigation and control. Campaignfinance reform threatens to invert that understanding, subjecting politicalcommunication to a new kind of policing. Some supporters of campaign financereform seem to think that these civil libertarian objections are silly oralarmist. But if McCain-Feingold becomes law, it could easily become a basis forfederal 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. Withoutthreatening anyone's free speech, public financing can put challengers on a moreequal footing with incumbents and attenuate the driving imperatives of thecurrent money chase. Forget about damming the river of independent expenditures.Trying to block every possible pathway for private money is both dangerous andfutile. It is no advance for the cause of political equality if its pursuitjeopardizes political liberty. And to put liberty at risk for the sake of soineffectual a piece of legislation as McCain-Feingold would be a huge mistake.
