Everything you know about the current politics of campaign-finance reform is wrong. Minority leader Tom Daschle has insisted, and the newspapers have reported, over and over again, that the Senate’s entire 45-member Democratic caucus enthusiastically endorses the McCain-Feingold “Bipartisan Campaign Reform Act of 1997.” Daschle has further claimed that he thwarted a conspiracy by majority leader Trent Lott to drown McCain-Feingold in the rush of legislative business near November’s scheduled congressional adjournment. And Daschle last week produced a letter from Bill Clinton threatening to invoke the president’s authority to keep the Senate in session until Lott gives McCain-Feingold proper consideration. That consideration is now guaranteed-indeed, Lott has already begun the formal debate — and any up-or- down vote on the measure will probably command a majority of senators. Only a Republican filibuster, led by Kentucky’s Mitch McConnell and sanctioned by Lott, will prevent it from passing the Senate. According to Tom Daschle.
Except that none of this is true, exactly. McCain-Feingold, introduced on January 21 as “S.25,” never had 45 Democratic cosponsors. It had only 30, and Tom Daschle himself was not one of them. In any case, S.25, in the written form it took most of this year, will most definitely not pass the Senate this month or next, with or without a filibuster. Because for all practical purposes, that legislation became obsolete more than four months ago.
On May 22, McCain and Russ Feingold of Wisconsin announced an intention to amend their then-stalled 87-page bill to boost its prospects. The proposed substitute, described in a vague, two-page handout, involved slight adjustments to the original. Most notably, the senators abandoned their call for a flat — and unconstitutional — ban on political action committee (PAC) contributions to federal candidates. In its place, they suggested restricting PAC contributions, adjusted for inflation, to one-sixth the level authorized by the Federal Election Campaign Act of 1974. This provision, which would induce candidates to solicit from twice as many PACs in order to raise the same amount of cash, made no sense as a “reform.” Nor did it fix the constitutional problem, since the courts would likely rule it a violation of the First Amendment.
By early last month, the “revised” McCain-Feingold bill had clearly failed in its purpose, winning just two additional cosponsors. So the authors went back to the drawing board and have now emerged with a radically scaled-back, third version. The PAC contribution limit is gone. The very heart of the old plan — a complicated and (sigh) unconstitutional system of financial benefits and penalties for federal candidates who agree or refuse to observe quasi-voluntary campaign-spending limits — is gone, for that matter. As of this writing, it’s still hard to tell precisely what’s in the new bill; all there is to go on is a six- sentence fact sheet given out at a press conference on September 22.
It was this undrafted legislation that Daschle claimed his troops unanimously support, along with Republican senators John McCain of Arizona, Fred Thompson of Tennessee, and Susan Collins of Maine. It was this still undrafted legislation, Daschle loudly protested, that Trent Lott and Mitch McConnell plan to scuttle with a filibuster. And it is through this prism of partisan by-play — Democrats lined up as a bloc in favor of “reform”; the GOP lined up nearly completely against it — that Daschle hopes the country will view campaign-finance law next year.
But things are not at all what they seem, substantively or politically.
First off, the ultimate iteration of S.25, after McCain unveils it for a vote this week or next, will remain a very bad bill, for two basic reasons.
The courts have repeatedly ruled that so long as private citizens and organizations do not explicitly endorse a political candidate, they retain an unlimited First Amendment right to advance their views through “issue advocacy.” It is true that this principle produces a public-policy anomaly. In an election year, the American Widget Coalition may fund a multi-million-dollar advertising blitz that argues Senator X is wrong on widgets. And Senator X, constrained by existing fund-raising rules, may not be able — during his own campaign — to respond at equal volume. Incumbent politicians hate this risk, and McCain-Feingold will propose a solution. It will propose to suck independent, “candidate-related” issue advocacy fully under federal, contribution-limited regulatory supervision.
We’re not entirely unsympathetic to the problem of resource-constrained federal candidates’ losing control of their campaigns to outside groups. But this proposal is one the Constitution will not admit. The First Amendment does not grant Congress the authority to quiet praise or criticism of elected officials simply because Congress determines that the people issuing that praise or criticism have “too much” influence.
Next, S.25 will prohibit ” soft-money” contributions to the campaign committees of national political parties. Earlier this year, Daschle joined House minority leader Richard Gephardt at a press conference to endorse a constitutional amendment designed to allow a ban on soft money. Nowadays, Daschle pretends that no such amendment is necessary; the Constitution already allows such a ban, he says. He was right before: He is wrong today. Soft-money donations are funds raised by national political parties for the purpose of supporting their state and local candidates and affiliates. The funds are distributed to those candidates and affiliates, and then spent on non-federal election activities under state law. By federalizing and regulating all national-party financial support of state-based candidates and parties, a soft-money ban would deeply injure the federal system of the Constitution.
If it takes a Republican filibuster to block McCain-Feingold, so be it. But here’s where things get interesting. For it is a truth rarely acknowledged in public Washington discourse that Tom Daschle is depending on a Republican filibuster to block McCain-Feingold. Democrats love to decry soft money, and love to have the GOP do the dirty work of preserving it. Because the fact is that Democrats are, as a proportion of their total fund-raising, vastly more dependent on soft money than Republicans are. A ban on soft money would erase slightly less than a quarter of total Republican financial resources in any given election cycle. It would erase more than a third of total Democratic resources. The Democratic party cannot afford to do without soft money.
What if Trent Lott and his Senate GOP colleagues quashed McCain- Feingold — as they should — but then immediately proposed a campaign- finance-reform measure that credibly and constitutionally addressed soft money? Lott will introduce an official GOP alternative during the current debate. It should include an increase — call it an “inflation adjustment” — in the existing, 1974-era limits on “hard-money” federal contributions. This is a very good idea, one endorsed by a growing number of political scientists as a means to stimulate the hard-money system and cut down on the ubiquitous ” money chase.” This would make it easier for candidates — especially challengers — to raise the money they need to run competitive campaigns.
But the Lott proposal may also include a contribution limit — say, $ 100,000 — on soft-money donations to the national political parties. This provision could be justified as a deterrent to the kind of “appearance of corruption” that has so plagued President Clinton’s John Huang operation at the DNC in recent months. And the Supreme Court would likely accept that justification as consistent with the First Amendment.
How amusing it would be to watch Tom Daschle and company respond to such a proposal, which would enjoy the support of a clear majority of senators — more than have ever supported McCain-Feingold. Daschle has already acknowledged that he’s ” willing to look at caps on soft money” and is unwilling to say “I’m going to oppose” lifting current hard-money caps. Would he mount a Democratic filibuster against that kind of legislation? That seems politically infeasible.
Particularly if Republicans refuse to give Daschle any excuse. It’s not clear that most Republican senators yet understand how completely in the campaign-finance driver’s seat they could find themselves — if they act with conviction and imagination. Unfortunately, it still seems to be GOP dogma that the issue is a “loser,” that the best approach is to get in and out of it as quickly as possible, and that the best result is no result. There are members of the Senate Republican caucus who accordingly still figure they will include in their own campaign-finance bill provisions that Democrats simply cannot swallow — like sharp curbs on political disbursements of labor-union money. That would probably kill any chance of successful reform legislation in this session.
This would probably be a mere tactical victory. Of course, no bill is better than a bad bill. But the Senate Republicans have a sudden and surprising chance to take a good, first step for the country — and for their party: Introduce campaign-finance legislation that would curb soft money and reinvigorate the hard-money system by increasing those limits. In other words, restrict the power of special interests and strengthen the hands of citizens. Why not take it?
David Tell, for the Editors
