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Broken Reforms

Our current campaign finance system—even with all its problems—works better than the proposed alternatives

by Randolph J. May
Legal Times, August 6, 2001

Paraphrasing Winston Churchill’s famous aphorism about democracy, it’s probably fair to say this: “Many forms of campaign finance reform have been tried in this world of sin and woe, and no one pretends that the present system is perfect. Indeed, it has been said that the present system is the worst except all those others that have been tried from time to time.”

The editorial pages of The New York Times and The Washington Post are continuing the steady drumbeat for campaign finance reform. I understand that many of those contributing large sums to campaigns hope to influence candidates’ conduct in office on issues of special interest to them.

By creating the appearance of influence buying, I’ll stipulate that the huge amounts of unregulated soft money contributions flowing into today’s campaign coffers can seem unseemly. And I’ll even stipulate that large soft money contributions often do buy influence—at least in terms of buying the access to officeholders and the opportunity to persuade that comes with it.


But none of this unseemliness means that our democracy can withstand the campaign reform favored by the Times and the Post. No one contends the present system is perfect. But bills restricting soft money contributions—such as the McCain-Feingold bill in the Senate and the Shays-Meehan bill in the House—would make matters worse.

First, it is highly unlikely that such reforms actually would stop the flow of money that creates the appearance of influence buying. Second, and more fundamental, the new restrictions would impinge even more on core free speech rights than the strictures sustained in Buckley v. Valeo (1976). (There, the Supreme Court recognized that contributing money to political campaigns is protected First Amendment expression, even though some limits may be sustained if the government shows that they are necessary to prevent corruption or the appearance of corruption.)

But charges of money being used to corrupt politicians are nothing new in American politics. George Washington was dogged by charges of a kind of spending irregularity when he distributed free liquor in his race for a seat in the Virginia House of Burgesses. In the 19th century’s Gilded Age, Mark Twain remarked, “I think I can say, and say with pride, that we have legislatures that bring higher prices than any other in the world.” And in the 20th century, Will Rogers not only opined that “we have the best Congress that money can buy,” but added that “politics has got so expensive that it takes a lot of money to even get beat with.”

It is naive for the reformers to believe that the proposed new restrictions on soft money contributions will deter for long those who wish to spend money in an effort to advance their political causes. Already it is becoming common for lawmakers to solicit big money support for their favorite charities or for new academic centers or institutes named for them. None of the present reform proposals would prohibit these types of contributions. But just like the soft money contributions that the new legislation would prohibit, these “charitable” donations may well create an appearance of influence buying.

In other words, those who believe that they can influence an officeholder’s conduct of the public’s business by providing financial support of one sort or another will likely find a way of doing so. John McCain is fond of saying that he is convinced that even if his campaign reform bill is enacted, we will still need another round of reform in 20 years. Maybe in this sense he believes he is only following Thomas Jefferson, who once wrote, “every Constitution, then, and every law, naturally expires at the end of 19 years.” Fortunately for the republic, this is one of Jefferson’s views that failed to gain currency as a governing principle.

Regardless of whether new campaign strictures would prove ineffective, the extent to which reform proponents are willing, if not eager, to sacrifice free speech rights in the name of curbing the influence of the so-called special interests is downright scary. The best illustration of the “First Amendment be damned” approach is the treatment of issue advertisements by the McCain-Feingold bill. Currently, issue ads run by independent groups that praise or disparage a candidate are not subject to the campaign finance regulations unless they expressly advocate the election or defeat of a candidate.

The reform bills would ban any broadcast or cable issue ads (called
“electioneering communications”) by corporations and labor unions within 60 days of an election if such an ad merely “refers to” a candidate. Even nonprofit corporations are subject to the speech ban, although certain tax-exempt organizations may engage in pre-election communications if they create a segregated fund for such ads financed solely by individuals and if the people who contribute $1,000 to the fund (or, in some cases, the organization itself) are identified. It is telling that, if McCain-Feingold were enacted, organizations would not be able to run pre-election ads objecting to the speech restrictions bill if either McCain or Feingold were candidates.

It’s understandable why, in the interest of self-protection, incumbents want to shut down ads that criticize their records, especially close to an election when people actually begin paying attention to political issues. And it’s easier to justify such self-protection if you can demonize anyone who wants to attack your record as the “special interests.” But who defines the “special interests,” and to what end?


The House never debated or voted on the merits of the reform bill, which House Speaker Dennis Hastert postponed after members of Congress failed to agree on the ground rules of the debate. But the day of the scheduled vote, a New York Times editorial urged wavering members of the Congressional Black Caucus to support Shays-Meehan by highlighting that “special interests” like the National Rifle Association and anti-abortion groups opposed it. The truth, of course, is that special interests come in all stripes. They can include Ted Turner, the labor unions, handgun control, and abortion rights advocates on one side of the political spectrum, and Richard Mellon Scaife, corporations, the National Rifle Association, and anti-abortion activists on the other.

In the interest of reducing their enormous influence and thereby enhancing the influence of other voices with less resources, I wouldn’t want Congress to pass a law limiting what the Times and Post corporations can spend to disseminate their own issue advocacy. And such a law (hopefully) would be declared an unconstitutional abridgement of free speech in any event. But why do these corporations assume that they speak for the public interest while others represent special interests?

Appearing recently on C-SPAN, Rep. Harold Ford (D-Tenn.) offered this in favor of the proposed pre-election advocacy ban: “Why should any organization regardless [of whether] they are Democrat or Republican, conservative or liberal, be allowed to come in and influence the outcome of elections solely to advance some narrow issue of theirs?”

I’m not sure what criteria Ford uses to decide whether an issue is “narrow.” But I am quite sure I know why he would rather not have anyone mucking around in his re-election campaign by criticizing his vote on an issue that he may categorize as narrow. Issueless campaigns heavily favor incumbents.

Someone needs to explain to Ford and all the other reform proponents that democracy is about individuals and organizations having the freedom to advocate—including spending money—on causes in which they believe. James Madison’s famous Federalist No. 51 discusses the “great variety of interests” that must be accommodated in our republic. Indeed, in this one brief essay, Madison refers to the existence of rival “interests” no fewer than 10 times. The Constitution’s framers determined that the best way to prevent the various interests from gaining undue sway over society at large was the establishment of a system that diffuses power, not one that controls speech.

There are very few special interests in dictatorships. That’s why I bet Churchill would agree that our present system, with all its supposed faults, is less worse than any of the current reform proposals.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

© 2001 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times (1-800-933-4317 • subscriptions@legaltimes.com • www.legaltimes.biz).



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