Following the Money
The real debate is about suppression of political speech
The debate that started in the Senate last week is more than a tad unusual. Sens. John McCain of Arizona, a Republican, and Russell Feingold of Wisconsin, a Democrat, have commitments for their campaign-finance bill from 60 senators--more than enough for passage. But most senators don't really want to pass the part of their bill that is likely to be held constitutional--the ban on "soft money." And much of the enthusiasm for the bill comes from the part that seems plainly unconstitutional--limits on independently financed ads run within 60 days before elections.
To get a handle on just what's going on, it's crucial to understand what the so-called reform is about. It's about suppression of political speech. Soft money, decried as a great evil, is money raised by political parties pursuant to either federal or state laws--which, in practice, means that federal contribution limits do not apply. Banning soft money, as McCain-Feingold's chief opponent, Republican Sen. Mitch McConnell of Kentucky, points out, means suppressing the political speech of the parties, the only dependable sources of funds for those who challenge incumbents. Limiting independent ads is also an attempt to suppress political speech. Naturally, incumbents like such limits: They make it easier to win re-election. The framers of the First Amendment had another idea, that representative government would work best by maximizing political speech.
Senators spent hours of debate remedying problems caused by earlier reforms. They voted 70 to 30 to raise contribution limits for those opposed by candidates who spend large sums of their own money, as they can do under the Supreme Court's 1976 decision in Buckley v. Valeo. If you can't suppress speech, then you can make it easier to outshout it. Another amendment, passed 70 to 30, guarantees candidates the lowest possible rate for TV advertising. But a 1974 law already required that, and TV stations figured out ways around it. They probably will again.
Upping the ante. There is one form of spending McCain and Feingold were careful not to suppress: the ability of labor unions to use their members' money without their permission for political speech. They beat a Republican "paycheck protection" amendment that would require unions and corporations to get members' and stockholders' permission for political spending. This was to hold on to skittish Democrats. In 2000, Democrats raised as much soft money as Republicans. Democratic Sen. Tom Harkin of Iowa, with a tough opponent in 2002, told the Democratic caucus that soft money is vital to the party. All Democrats were committed to McCain-Feingold, but not all want to vote for it.
McConnell hopes to derail the measure with one of two amendments. One is the proposal by McCain's friend, Republican Chuck Hagel of Nebraska, to limit but not ban soft money and to raise the individual contribution limit to $3,000--what the $1,000 limit was worth in real dollars when it was enacted in 1974. McCain opposes a higher limit, but some Democrats want it, and so this could pass.
Another crucial amendment is on "nonseverability"--if one provision of the law is found unconstitutional, all of it falls. There is a strong argument for nonseverability, even if the argument has more to do with process than substance. The Congress that passed the 1974 campaign-finance act might well have set contribution limits higher if it had known how Buckley v. Valeo would come down. Since McCain-Feingold's independent spending limits are likely to be held unconstitutional, Democrats can reasonably hope to kill the soft-money ban by voting for nonseverability.
advertisement
