Opening Argument – How Campaign Finance Reform Could Happen. Really

National Journal

With campaign finance reform headed for the House floor in the next few days — and the Senate floor next month — the likeliest outcome is another dreary partisan stalemate.

One obstacle is the overblown claim by conservative Republicans (and some others) that the proposed reforms would violate the First Amendment. Another is the secret urge of some Democratic incumbents — who pose as reformers — to scuttle any bill that would abolish the flood of "soft money" they have tapped so successfully.

Still, there is a chance that a package of moderate reforms can be cobbled together and enacted. It would probably need three main elements to be both politically viable and worthy of the "reform" label: 1) abolition of the huge soft-money contributions that corporations, unions, and wealthy individuals make to political parties, and that emit such a strong stench of corruption (or at least influence-peddling); 2) a ban on the use of corporate or labor union money to finance so-called "issue advertisements" that support or attack federal candidates within 60 days of an election; and 3) an increase in the inflation-ravaged caps on individual contributions of "hard money," which are the lifeblood of both candidates and parties.

The bill at center stage in the House, sponsored by Reps. Christopher Shays, R-Conn., and Martin T. Meehan, D-Mass., contains the first two of these elements, plus some excess baggage. It passed the House in August 1998 by a vote of 252-179, and it seems fairly likely to pass again.

The real bargaining will take place on the floor of the Senate. Last year, a bill almost identical to Shays-Meehan, sponsored by Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., fell 8 votes short of the 60 needed to break a filibuster. McCain, who is also running for President, has said he will be open to any amendments that would help bring aboard more votes.

The most passionate conservative critique of Shays-Meehan and McCain-Feingold is that they would "eviscerate the First Amendment," in the words of the columnist George F. Will, by decreeing "complete censorship of any private organization’s broadcasting of even factual material about a mentioned candidate within 60 days of an election."

In fact, all private organizations (and individuals) apart from corporations and labor unions would remain free to say (or broadcast) anything they want, about any candidate, any time they want.

Shays-Meehan would bar the use of corporate or union money for "issue advertisements" that refer to a candidate within 60 days of an election. It would also limit (to $5,000) individual contributions to other organizations — independent groups ranging from the Sierra Club to the National Right to Life Committee — for that kind of pre-election advertising. And it would require independent groups to pay for such ads through political action committees and to publicly disclose the names of contributors.

The proposed restrictions on corporate and union money would put teeth back into laws that have barred corporations since 1907, and unions since 1947, from contributing to candidates or spending money to influence elections, except through regulated political action committees.

In recent years, unions and corporations have massively circumvented these laws by funding pre-election "issue ads" (and by contributing soft money). A ban on such spending would make sense, and would be compatible with the First Amendment, because corporations and unions control vast sums obtained from individual stockholders and workers who have not consented to having their money spent on election campaigns.

But First Amendment rights would be pinched by the Shays-Meehan effort to regulate pre-election issue ads by independent groups. Some such groups would find it chilling to have to guess at whether criticizing a candidate’s stance on an issue might trigger the regulations, and burdensome to hire lawyers and accountants to deal with the paperwork. And some of their contributors might justifiably want to remain anonymous.

On balance, regulating pre-election issue ads by independent groups seems unlikely to do enough good to warrant the First Amendment costs.

Abolishing soft money, on the other hand, would end the single sleaziest practice in a campaign finance system that McCain (somewhat hyperbolically) calls "an influence-peddling scheme in which both parties compete to stay in office by selling the country to the highest bidder."

Nor would the basic Shays-Meehan soft-money ban offend the Constitution (although it arguably goes too far in curbing the activities of state political parties). As the Supreme Court has long recognized, while the First Amendment includes a right to advertise one’s views to the widest possible audience — and thus bars restrictions on campaign spending — it allows restrictions on campaign contributions.

The main basis for this distinction is that contribution caps serve the government’s interest in avoiding the corruption (or appearance thereof) that results when people with political power solicit or accept huge sums from people who want to influence policy.

That’s why the Court upheld the caps on campaign contributions (hard money) that Congress adopted in 1974. But the flood of unlimited soft-money contributions in recent years has made a mockery of those caps. What began as a modest rule to help state political parties raise money for get-out-the-vote drives and other party-building activities has become a gigantic loophole. In 1996, powerful politicians in both parties routinely used it to solicit soft money from special interests in amounts ranging far above $100,000, to be funneled through the political parties and used to buy campaign advertisements.

The Shays-Meehan bill’s main flaw is its failure to increase substantially (or to index for future inflation) the caps on individual contributions of hard money to candidates and parties, which are the healthiest source of private campaign financing.

Those caps — which bar individuals from giving more than $1,000 per election (or $2,000 per year) to any candidate, more than $20,000 per year to any political party, and more than $25,000 per year in all — have not been raised since 1974, when a dollar had more than three times the buying power it has today.

The caps seem considerably lower than necessary to avoid any serious risk or appearance of influence-peddling. While such calculations are inherently somewhat arbitrary, not many candidates are cheap enough to sell their souls for, say, a $3,000 contribution.

The caps are also so low as to force candidates (at least those who eschew soft money) to spend inordinate amounts of time rounding up hundreds of small contributions. And they give an unhealthy advantage to people rich enough to finance their own campaigns.

Raising (and indexing) the hard-money caps may also be essential to winning enough Republican votes to get a reform package through the Senate. Some Republicans are understandably concerned that abolishing soft money without raising the hard-money caps would simply make it too difficult for candidates and (especially) parties to raise the money they need.

Then there is the raw partisan calculus: Republicans — with a broader base of affluent members willing to contribute thousands of dollars — would benefit more from an increase in the hard-money caps than would Democrats, most of whom oppose any such increase.

And therein lies a dilemma for McCain and others who seek to assemble a bipartisan coalition for reform. The dilemma is complicated by the fact that Democrats — while still marginally behind in the soft-money race — get a far larger percentage of their funds from soft money than do Republicans. The Democrats are still not (on balance) the party of the rich — but they have become quite competitive at the game of squeezing six-figure sums out of special interests eager to curry favor with lawmakers and regulators.

Democratic enthusiasm for a soft-money ban — especially one coupled with higher hard-money caps — is thus tempered by partisan self-interest. On the other hand, Democrats might reap some advantage from tight new restrictions on pre-election issue advertising.

So when campaign finance reform reaches the Senate floor, the dual challenge for those who want to avoid another partisan stalemate will be to dilute the proposed restrictions on issue ads, and to raise the hard-money caps, just enough to win more Republican votes without losing Democrats.

Will the Republican leadership give the reformers a fair shot at mustering the magic 60 votes? Will the reformers come close? And if they do, will Democrats seek to sabotage the bill by claiming that it no longer represents real reform?

My bets: No, no, and yes. Here’s hoping I’m wrong.