THIS WEEK AND NEXT, the U.S. Senate will consider amendments to a piece of omnibus campaign finance reform legislation — and then approve or reject the result by a majority vote. Nothing like this has happened for years. One or another iteration of the bill in question has haunted each of the past several sessions of Congress, to be sure. But it has never survived a real or threatened Senate filibuster. This time there will be no filibuster, the politics of the thing having been altered by last November’s election. So perfervid advocates of the Bipartisan Campaign Reform Act of 2001 — otherwise known as “McCain-Feingold” — are wagging their tails and woofing with special enthusiasm. The Senate now has before it, according to the New York Times, the “best chance in a generation to clean up American politics.”
Were it actually the case that prospects for passage of McCain-Feingold in its current form had so dramatically improved, anyone fond of the Constitution would have reason to be unhappy. But it has become clear in the past few weeks that Democratic support for what mugwumps at the Times and elsewhere consider McCain-Feingold’s central and vital provision — an absolute ban on high-dollar “soft money” contributions to political parties — has atrophied. And never really existed.
The substantive pretext for a soft-money prohibition has always been deeply flawed. To pay for an expensive campaign of nationwide image advertising, the 1996 Clinton-Gore reelection effort organized an unprecedented harvest of soft-money contributions to the Democratic National Committee. Eventually publicized, the scheme became infamous for its abuses, responsibility for which the Democratic party was thereafter eager to evade. The problem, they told us over and over, was bipartisan: “the system.” And McCain-Feingold was the reform that would make it go away. Except that all the misdeeds charged to Clinton and Gore in 1996 were illegal under existing law. And it was the irrationality of a previous “reform” — the suffocating donation and expenditure limits imposed on publicly financed presidential campaigns — that inspired those misdeeds in the first place. Soft money per se had nothing to do with it.
No matter. For the cover the proposal provided, and for the appeal it made to an ancient American prejudice against other people’s money, Democrats were content to pretend support for, and demand an up-or-down Senate vote on, the McCain-Feingold soft-money prohibition. So long as they could be certain that no such vote would ever come.
Well, now it has. Which has finally focused Democratic attention on what has always been true: that the abolition of unregulated political contributions would work greatly to the Republican party’s advantage. Democratic campaign committees have traditionally trailed in small-dollar, “hard money” fund-raising. Today they trail so badly, in fact, that enactment of a soft-money ban could well cripple them at the polls. “If we lose these big contributions,” one leading Democratic strategist has recently conceded, “we can forget our hopes of a comeback in 2002.” Should McCain-Feingold become law, another admits, there’ll be “absolutely no way we can compete.” Not bothering to pretend that he was motivated by anything but partisan self-interest, Louisiana’s John Breaux last week became the first Democratic senator to withdraw his support from the legislation. Many of his party colleagues would clearly rush to do the same if they could identify some slightly less cynical excuse.
Here’s one: The Democratic and Republican parties exist to do more than elect members of the House and Senate. They are national organizations with major responsibilities, financial and otherwise, to state and local affiliates that act on behalf of candidates for literally thousands of non-federal offices — in campaigns conducted according to non-federal laws, most of which still permit direct party contributions by businesses and unions. The McCain-Feingold soft-money ban would criminalize those contributions by requiring that virtually all state-party expenditures, during any election in which even a single candidate for federal office appears on the ballot, be made with money raised in strictly limited increments, and only from individual donors. By unilaterally federalizing all American electioneering practices, in other words, the McCain-Feingold bill would violate our Constitution’s Tenth Amendment.
Even so stalwart a Democratic interest group as the AFL-CIO has lately adopted some form of this argument. Since it happens to be true, it would be nice to hear it echoed more broadly.
As it would be nice to hear more widespread warnings about a still more pernicious feature of the McCain-Feingold bill as presently constituted: its harsh assault on independent political activity by business, union, and non-profit issue groups. Some sympathy is certainly due to congressmen and senators who find themselves, late in a reelection campaign, subjected to a televised barrage of soft-money-funded criticism from such groups. Constrained by hard-money rules, most incumbents are never able to respond at equal volume. Nevertheless, this problem, real as it is, cannot possibly justify the elaborate and draconian restrictions McCain-Feingold seeks to impose on private citizens who might so dare to criticize their elected officials: rules about whom the critics are allowed to consult or hire before they open their mouths in public, for example, and other rules about what they can say, and with whose money, when they do.
An unbroken, quarter-century-long line of Supreme Court jurisprudence makes clear: Under the First Amendment, all this stuff is unconstitutional. Unfortunately, however, unlike McCain-Feingold’s soft-money ban, its restrictions on political speech appear to enjoy growing support — in both parties. Would that it were not so.
And would that it were easier to predict the ultimate character of the campaign finance bill the Senate will vote on at the end of next week. A blizzard of amendments will be offered to the McCain-Feingold legislation in the meantime. Most notably, Republican senator Chuck Hagel of Nebraska will propose a full-scale substitute measure that would preserve the prerogatives of state election law by capping but not banning federal soft-money fund-raising — while reducing the relative influence of soft money by raising existing limits on hard-money contributions. The New York Times bays that Hagel would thereby “institutionalize corruption.” But no one in the Senate privately believes such full-mooner hysteria, and if they felt free to vote their sincerest preferences, the vast majority of senators in both parties would doubtless sign on to the Hagel amendment in a flash.
They may not feel free to vote their preferences, however. Everything will be up in the air these next two weeks, every proposed amendment will affect the prospects for every other, and there’s no telling how it will all come out. Just as there’s no telling how the House of Representatives might eventually handle similar legislation. The entire exercise may well collapse of its own weight. Or — wonders never cease — some modest though valuable piece of genuine campaign finance reform might emerge from Congress.
Or — prepare for the worst — the Times may get its way and Congress may decide to give the Constitution the back of its hand. In which case one hopes that President Bush, who has largely kept his powder dry on the subject, will prove willing, as his father was, to expend what political capital might be necessary to sustain a principled veto.
David Tell is opinion editor of THE WEEKLY STANDARD.
