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Hit Parade on Campaign Finance Reform
Updated if additonal items are written on this topic.

CBS News got even more overexcited than usual reporting on yesterday's Supreme Court campaign finance decision. Dan Rather used it as his lead item, opening the news with this sentence:

A big boost for campaign finance reform -- a U.S. Supreme Court decision puts pressure on Congress to act on John McCain's call for change, opposed by President Bush.

Mort Kondracke has a good idea for improving McCain-Feingold so it doesn't drain the parties of the power that comes with campaign cash: Why not have a separate "hard money" limit for contributions to parties, so an individual who has already given the maximum (say $35,000) to various candidates could also give $10,000 to his or her party? ... In general, McCain-Feingold defenders argue that parties were doing perfectly well before they started getting big soft money contributions. That's not my impression. I remember the pre-"soft" era as a time when I read, wrote or edited what seemed like about 107 articles lamenting the rise of single-issue political action committees (PACs) and the decline of parties. These articles usually had titles like "PACs Americana," and usually made the point -- valid then, valid now -- that unlike PACs, parties at least have the goal of getting 51% of the voters to agree on something. ... Parties, unlike PACs, are also a mechanism of accountability. If you get mad at how the Democrats act in office, you know what to do. But how do you get back at a PAC? ... (4/6)

Zero: The Logic of Political Destiny: Both Democrats and Republicans seem to be boasting in public that the McCain-Feingold reform will hurt them, and worrying in private that they may be telling the truth. Democratic leader Daschle is said to secretly oppose the bill because he fears its effect on his party. Republican leader Tom DeLay is said to oppose the bill because he fears its effect on his party. This item is just a reminder that they can't both be right. Control of Congress, and of the White House, are each zero-sum games, which it is logically impossible for both parties to win. A gain for one is a setback for the other. Similarly, it's impossible for "both parties to lose" under the bill, since one party's loss is the other's gain. So somebody's calculations are wrong. ... Kausfiles' best guess: The Republicans are right that the bill will hurt them. Sure, the Dems recently achieved parity in to-be-banned soft money -- but, as E.J. Dionne notes, that was when they controlled the White House and corporations had to pay them off. Now they don't control nothin'. Plus, the bill doubles the limit on individual contributions -- which will mean dollars for Democrats once Terry McAuliffe taps the millions of networking yuppies in the culturally-liberal suburbs. (This is what's now called "grass roots organizing.") The lesson of the 2000 election, remember, was the urban/rural split of the electoral along cultural lines. So who do you think the $2,000 donors are -- "slicks" or "hicks"? The answer is obvious. ... It's of course possible for incumbents of both parties to strike a deal that benefits all incumbents at the expense of all challengers. That's a win-win deal for individual incumbents, and it's probably the main reason any legislation will pass this year at all, given the near 50-50 split. It's also what seems to have happened with McCain-Feingold, which was arguably a pro-incumbent bill to begin with, but which became more so as it was amended. ... (4/3)

N.Y. Post's entertaining-but-usually-wrong Dick Morris delivers again, this time arguing that Sen. Tom Daschle "is working diligently behind the scenes to kill the McCain-Feingold bill." Does Morris offer any evidence that this is true? Take a guess. ... (4/3)

Howard Kurtz and Ron Brownstein are right, of course, when they argue that the media's obvious general bias in favor of campaign finance reform stems primarily from an idealistic disgust with "soft money" and its attendant corruption, and secondarily from the press' fondness for "follow the money" scandal stories. I wouldn't discount the McCain Ratings Factor, though ... Kurtz might also have added that, because of the strictures of conventional "objective" journalism, mainstream reporters may be not entirely uncomfortable with a system that reserves its toughest regulations for "express advocacy" or anything that approaches it. Electioneering isn't "objective," after all. Which is one way a subtle-self-serving element -- "Free speech is for guys like us! We have to live with anti-advocacy rules, why not them?" -- creeps into the press' earnest idealism. ... P.S.: Kurtz is currently preparing a profile of my fellow me-ziner Andrew Sullivan. ... I've been meaning for some time to express my tremendous admiration for Kurtz and his industrious work-habits. ... (4/2)

The McCain Memorial Web Content Revenue Model: WaPo's Marcus and Eilperin argue that the effect of McCain-Feingold, even with its restrictions on independent ads, will be -- as its foes claim -- to shift money and power away from the parties and toward the independent players. ... Meanwhile, Michael Barone e-mails kausfiles to suggest another possibility -- money might start flowing through the "media" loophole. Suppose some rich Republican activists decide to publish a little community newspaper in swing districts, complete with ads, movie listings, and of course vigorous editorial denunciations of the Democratic slate. As noted by Michael Kinsley, expenditures for a "news story, commentary, or editorial" in a "newspaper, magazine, or other periodical publication" don't even count as regulated "expenditures" under the campaign finance laws. So why wouldn't our hypothetical Conservative Swing District Gazette qualify as a "periodical publication" exempt from disclosure and fundraising requirements? Because it was controlled by Repubicans? So are lots of newspapers. Because it loses money? So do the New Yorker and Weekly Standard. Because its owner is committed to the election of a particular candidate? Tell it to Martin Peretz! ... Put another way, why isn't kausfiles a "periodical publication" exempt from the campaign-finance laws? Why couldn't monied partisans funnel their illicit electioneering cash through ... me! Attention, fatcats: Just click on the Amazon paybox to the right! ... [No offense, but if a pissant operation like kausfiles qualifies as "media," what doesn't?--ed. Exactly!] (4/1)

Speech for Pinch. All Others Report to F.E.C.: Let the record show that on 3/30 the New York Times, self-proclaimed "vigilant" defender of the First Amendment (but not the Frist Amendment!), endorsed "stringent fund-raising curbs on independent advocacy groups for so-called issue ads that mention the names of candidates and are broadcast two months before an election." ... (3/31)

It's a Double Standard, I Tell You! On Friday, PBS NewsHour host and CW embodiment Jim Lehrer played the clip of Sen. McConnell calling McCain-Feingold "stunningly stupid," and then chided McConnell for lacking "grace" in defeat. ... Hmmm. When Sen. Moynihan made even more extreme pronouncements as he was losing the welfare reform debate in 1996 -- e.g. "those involved will take this disgrace to the grave" -- I didn't notice anyone on PBS saying he lacked "grace" (although, I admit, he didn't). Instead, as I remember it, Moynihan was hailed as the conscience of the Senate and a possible prophet. ... Seems to me if McConnell thinks the bill is stupid he's allowed to say it's stupid. ... (3/31)

Where's the Yent-a-matic when you need it? Famously right-wing Clinton-basher Ann Coulter, in typical extreme fashion, ridicules McCain-Feingold's explicit special privilege for the media. It's the conservative line ... except that in this case famously non-right-wing Clinton-defender Michael Kinsley agrees, making fun in his own weekly column of McCain-Feingold's exemption of the media from its proposed restrictions on speech. ... Coulter and Kinsley, together again! ... If these two agree, they must be right! ... O.K., that's specious, but the special media exemption is deeply embarrassing to the McCain-Feingold reformers. ... Of the two columns, only Kinsley's has a prayer of convincing anyone who's undecided. Coulter isn't preaching to the converted so much as entertaining the converted. But her over-the-top scorn is smart in its own way. ("At least if the oil companies were granted a monopoly by the government the media would report it.") ... (3/30)

"I Know I'm Right," He Explained: Could that possibly have been a defensive tone creeping into the NYT's Tuesday editorial confronting the Senate passage of the disastrous Wellstone Ban on "electioneering" ads by non-profit "advocacy" groups? What the NYT might be defensive about is obvious -- the Wellstone Ban just takes the logic of the Times's denunciation of "so-called issue ads" one step further than the McCain-Feingold bill (which it amended) does. Instead of regulating and discouraging the ads, it apparently bans them.

The Times was forced to concede that Wellstone's amendment was "of questionable constitutionality." The paper didn't bother to explain why the Wellstone Ban was unconstitutional if McCain-Feingold's restrictions were perfectly OK. Instead of troubling its readers with arguments, it cited authority -- the authority of some previous leaders of the ACLU, and the authority of ... itself:

This page, which has a record of vigilance on the First Amendment, is convinced that nothing in the core McCain-Feingold bill, including its curbs on fund-raising for so-called issue ads by independent groups, would violate the Constitution.

he wants to protect the right of advocacy groups to raise unlimited money from special interests for their own campaign ads.

Has Wellstone's clampdown killed campaign finance reform? In a deeply disturbing major development, the Senate appears to have voted on Monday night to ban ads by non-profit "advocacy" groups (in addition to ads funded by unions and corporations) within 30-60 days of an election (i.e. when it counts most). The amendment was sponsored by Senator Paul Wellstone of Minnesota. It's hard to know where to start, but here goes: 1) If a non-profit group, like the Sierra Club or the National Organization for Women, which may be funded by thousands of small and medium-sized contributions from ordinary, concerned citizens, wants to run an ad saying Trent Lott is on the wrong side of the issues, that's pretty much the sort of thing that free political debate is all about, no? That debate becomes more important, and more deserving of protection, in the weeks leading up to an election. How did it happen that a "progressive" like Wellstone has come to advocate the repression of this sort of speech? 2) The reason to oppose the Wellstone Ban is not that it poses "a very serious constitutional problem," as Democrat John Edwards put it -- it's not that the damn Constitution is in the way again. It's that the Constitution is right, and the amendment is hostile to freedom. 3) Wellstone was joined by Republican opponents of McCain-Feingold (e.g. McConnell) who may recognize the amendment as a poison pill that will doom the bill in the courts, if not the Congress. But the 26 Democrats who joined Wellstone include Biden, Boxer, Cantwell, Kerry, Murray and Torricelli. (The complete list of shame may currently be found here. Look for Wellstone Amendment No. 145.) 4) Should Biden really be ranking Democrat on the Judiciary Committee if he has such feeble sympathy for the First Amendment? 5) This pretty much confirms what Michael Barone and many others (including Mary McGrory and kausfiles) have charged regarding the motivation of the Senators. They don't seem to care about banning soft money as much as they care about protecting themselves from challenges they can't control. 6) McCain and Feingold opposed the Wellstone Ban, but it serves them right, since they got the Senate's self-pitying, self-protective anti-speech juices flowing when they opened up the subject of restricting "independent" ads (with their provision to ban union and corporate ads and require cumbersome disclosure from everyone else). 7) It's not just that the Wellstone Ban will be struck down by the courts. It also gives President Bush clean, completely defensible and honorable grounds for vetoing the whole bill. Bush can invite the ACLU to the veto ceremony in the Rose Garden. (Is Michael Dukakis still a card-carrying member? Invite him too!) 8) The Wellstone Ban's passage doesn't doom the whole bill just yet. Votes like this are often reversed; the provision can be dropped in conference or after a veto. But a mighty groundswell of Web-driven outrage right now would be a good thing, regardless of what happens. You can contact Wellstone's office here. ... Wait, is it 60 days before an election? Is this legal? Do I have to register with the Federal Elections Commission? [Do you intend to influence Wellstone's federal reelection?--ed. I can dream, can't I? ...] (3/27)

Who's Cynical Now? USAT's estimable Walter Shapiro, writing in The New Republic, takes up against knowing cynicism regarding campaign finance reform. You know the cynical line: "money is like water, it will just flow elsewhere," "the law of unintended consequences," etc.. Shapiro argues that M-F's soft money ban would have its biggest beneficial effect on the White House, not Congress. Even if it meant that presidents go back to giving fundraising dinners in auditoriums filled with $3,000 donors, that will still be an improvement over Clinton's intimate dinners with a handful of $100,000 donors, whose requests for favors are not easily denied. (One caveat: a reliance on $3,000 donations means power -- and favor-seeking leverage -- will flow back to those networkers who can aggregate hundreds of those smaller donors, as the late Duane Garrett did for several Democratic candidates). ... What Shapiro doesn't point out is how the cynical "money is like water" argument is used by the McCain-Feingold forces as well as those who want no reform at all (i.e. Sen. Mitch McConnell). Specifically, cynicism is summoned up to support M-F's overreaching attempt to stop independent speech in the 30-60 days before elections -- after all, if you stop money from flowing through the "soft" loophole, it will just flow to independent speech, so we have to plug this next leak in the dike too. Some reasons for rejecting this cynical argument are offered in the item immediately below. I don't want to repeat them -- only to point out that the pure, non-cynical, gee-let's-try-it-maybe-it-will-help position is the kausfiles-approved "Semi-McCain" line: yes to the ban on soft money, no to the restrictions on independent speech. ... This is a case where half a loaf is not only better than no loaf -- it's also better than the whole loaf! ... (3/27)

Why Is Half-a-Loaf Constitutional? Why should it be unconstitutional to restrict independent speech but OK to restrict soft money contributions? That's a good question, one raised by Michael Barone's sophisticated U.S.News column arguing that both measures amount to "suppression of political speech." Technically Barone's correct -- citizens can perfectly respectably make their views known by giving money to a party or candidate who'll do the actual speaking. But with money contributions to parties, the likelihood of corruption is maximized and the non-instrumental expressive interest in speaking what's on your mind is at least attenuated. With "independent ads," the situation is reversed -- the chance of corruption is attenuated (since the candidate may not entirely like what you have to say) and the expressive aspect of political speech is maximized. So let's draw the line between these two situations. ... That's also where the U.S. Supreme Court drew the line in its still-standing Buckley v. Valeo precedent. (Not that we care what those unprincipled election-deciding justices have to say anymore!). ... Barone also claims that it's the clearly unconstitutional independent-speech restrictions Senators are most enthusiastic about. They're not that crazy about the good, ban-soft-money half of the McCain loaf. ... We'll find out soon enough. [You mean 'Only time will tell'--ed.] ... (3/27)

Kausfiles feels your pain: Senior kausfiles executives sense what other top media leaders have realized -- campaign finance reform bores the crap out of most people. That's why Tim Russert has to hype other topics ("Our issues this Sunday: the debate over tax cuts ... health care ... the environment ... and once again, kids killing kids") before spending half of Meet the Press pushing for McCain-Feingold again. That's why the updates on the Senate's M-F debate have been drifting further and further into the nether regions of newspapers. ... Memo to valued kf readers: Tough! Campaign finance is the significant issue on the table right now, and the press is doing a really bad job of covering it. ...

The nub of the problem: (a) McCain-Feingold's "soft money" ban is probably sound, but (b) its attempt to curb "independent expenditures" probably will be (and, more important, should be) held unconstitutional. If Congress includes a "nonseverability" clause, then when (b) is struck down (a) will be voided too. So why not just drop (b)? On Inside Washington, Newsweek's Evan Thomas explained why, expressing the widely-held view that closing off "soft money" to parties while allowing independent electioneering ads would just push the big money into "uncontrollable" and "secretive" and "unaccountable" independent campaigns. ... The first response to this is: Maybe, maybe not. Let's try it and see. Maybe some monied interests will be happy not to be dunned by pols and will just keep their cash and stay on the sidelines. The second response is that if M-F backers really think it would be worse than the status quo to have (a) without (b), then shouldn't they be for "nonseverability"? The third response is that yes, politicians tend to hate independent expenditures precisely because they are "uncontrollable" and often conflict with the preferred message of the politicians' official consultants. But precisely for this reason, independent ads might be less corrupting -- if a candidate doesn't really want the ads sponsored by interest group X, he's not going to be grateful for the $100,000 Group X spent on the ads the way he'd be grateful for $100,000 in soft money. The fourth response is: Tough! Free speech is almost by definition uncontrollable and chaotic. Where in the Constitution does it say politicans have to have the only, or even the loudest voices? The fifth response is that Congress has ways to make sure parties have the dominant voice, by amplifying it -- through public funding, or increased legal contribution limits -- rather than by muffling the competing voices. There's some sort of ecological balance that has to be found. ... But the silence of the mass of the media about McCain-Feingold's anti-speech provisions is really pretty shocking. Russert didn't even bring up the issue in his latest thinly-disguised issue ad. (Washington Week in Review's presentation was also embarrassingly biased, characterizing independent expenditures as spending by "outside groups" done "in the name of free speech." No, it is free speech!) ... In sum, Thomas is being paranoid, like those who believe the Grassy Knoll theory! [Actually, a peer-reviewed scientist just vindicated the Grassy Knoll theory--ed.] ... Next week: Kids killing kids! ... (3/26)

Today's campaign finance rantlet: Mary McGrory notes that the primary impulse behind the Senate's overwhelming approval of the Domenici amendment (which would give Senators the ability to raise extra funds if they face rich, self-financed opponents) was fear. The "night terror of office holders" is "a super rich challenger," she notes. "Feeling sorry for themselves, feeling underpaid, unappreciated and misunderstood," the Senators decided to protect their jobs. Isn't it pretty obvious that this same fear -- and not a reformer's zeal to close a possible loophole in the proposed "soft money" ban -- lies behind McCain and Feingold's inclusion of the speech-suppressing Snowe-Jeffords provision (which restricts "independent" expenditures by unions and corporations, and regulates them for everyone else)? ... Do McGrory's self-pitying pols care whether they lose to "issue ads" that are "coordinated" with their opponents or to ads that really are independently conceived? Do they care if the ads that kill them are sponsored by unions and corporations or sponsored by grassroots citizen groups? Of course not. They are (quite rationally) terrified of any ad campaign they can't control. ... If Congress somehow establishes the principle that "electioneering communications" within 30 or 60 days of an election can be suppressed, will it stop at suppressing union and corporate ads? Or will it move on to banning ads by ... mega-rich individuals? Non-profit organizations? Anybody else? ... And if Snowe-Jeffords threatens the whole reform because it may well be held unconstitutional -- as today's righteous Raines NYT editorial argues -- why not protect the larger reform by dropping it? Because for some senators preventing independent pre-election criticism is a primary attraction of the bill. Without Snowe-Jeffords, the McCain-Feingold bill would probably lose support. Or so its sponsors seem to think ... (3/22)

Will only kausfiles praise John McCain? There's something to Bradley Smith's complaint that the existing reporting requirements for independent "express advocacy" ads -- already regulated by the Federal Elections Commission -- chill free speech and political participation. College political clubs, for example, can't spend more than $250 before they have to register with the FEC and "start filing detailed reports." Wasn't that the genius of Japanese "non-tariff barriers" -- the realization that bureaucratic hassles and paperwork can be as deterring as a flat out prohibition? Stuart Taylor likewise argues that McCain-Feingold's disclosure requirements for "independent" political advertisers -- which would, he says, require them to "set up unwieldy, separate, segregated funds" -- are burdensome and probably should be unconstitutional. ...

But I don't understand Taylor's argument against a "soft money" ban. [Define soft money.mindy Unregulated contributions to political parties.] We used to not have soft money, and America was free. McCain's egocentric self-righteousness is annoying, but it's hard to deny his argument that unlimited contributions to official parties present a unique opportunity for both the purchase of influence and the shaking down of businesses by pols (just as unlimited contributions to candidates themselves, now banned, once did). Taylor says if soft money were banned, "companies, unions, and individuals who want to be active in politics" would just "take their money elsewhere," funding the "so called issue advertisements." But of course many companies, unions and individuals don't want to be active in politics; they've simply been shaken down. If they aren't shaken down anymore, they won't fund issue ads; they'll just save their money. And what's so terrible if some other, frustrated, givers do fund independent ads? Taylor says it would "warp our political discourse." How can it "warp" discourse, under the First Amendment, if individuals and organizations spend their money to say what they want to say? (And isn't that McCain's argument for inhibiting them, which Taylor rejects?)

The problem, Taylor suggests, is that they'll give money to "single-issue groups" like the NRA and Planned Parenthood. But where's the evidence for this? Is General Electric really going to pour millions into Planned Parenthood because it can't give money to the Democrats? Isn't it more likely to fund a broad-based ideological group that it agrees with, like the Democratic Leadership Council, or some other umbrella group that pops up? If the proliferation of such mock-parties leaves the official parties lacking sufficient voice, party power can always be boosted either by raising the party contribution limits, or through public financing, which Taylor agrees "might be able to make our politics cleaner and fairer." Another McCain-basher for socialized campaigning! ... (3/21)

Turning Hagel on His Head: Clearly, McCain-Feingold's restrictions on "independent" issue ads are its most troubling provision. In this respect, conservative anti-M/F lawyer James Bopp scores at least two points in a recent brief: 1) Even if M/F allows plain old advocacy organizations like the NAACP or NRA are to run ads mentioning candidates' names within 60 days of an election, the bill still requires that they register with the Federal Elections Committee and disclose donors. And even this seemingly non-burdensome requirement, Bopp notes, could have a chilling effect. For example, suppose the NAACP or NOW thinks Rep. Bob Barr's position on some piece of pending last-minute legislation restricting civil rights lawsuits is "divisive," even racist. If it mentions Barr's name in an ad against the legislation, and there's an election coming up, then that's an "electioneering communication" under M/F. Does that mean the NAACP has to file an FEC report? Worry about an FEC investigation? Better to play it safe and not mention Barr at all. ... 2) There may be a pretty good argument that M/F violates the Equal Protection Clause by explicitly giving owners of television stations unlimited rights to broadcast campaign "editorials" and "commentary" without the restrictions (e.g. disclosure) faced by ordinary citizens and groups that don't own television stations. The Supreme Court recently found an Equal Protection violation in the disparate treatment of hanging chad. Well, here's a case of explicity unequal treatment that really matters -- giving some people speech rights others don't have.

Why not just drop the "independent" advocacy restrictions, and stick to M/F's ban on "soft money" contributions to parties? It may well come to that. But presumably McCain and Feingold stuck in the restrictions on "independent" groups because they worried that if independents were free to advertise, but party fundraising was restricted, then the independent actors would control the debate, leaving the political parties and the official campaigns sitting on the sidelines. One solution to this problem is allowing some substantial, but limited, soft-money contributions, as advocated by Sen. Hagel. But there's another solution: public financing of campaigns. Independents may be able to outraise parties, but they won't be able to outraise the government. Perhaps a successful conservative attack on M/F's restrictions on independent ads will lead Congress (in a Hagelian dialectic!) to recognize the virtues of the ultimate liberal campaign reform scheme, public financing. ... (3/20)

Waverers will be shot! A desperate, bullying tone has crept into editorials supporting the McCain-Feingold campaign finance bill. Anyone with doubts about, say, the wisdom of restricting "independent," non-party political expenditures is branded an enemy of reform, an ally of special interests, etc. Exhibit A is Monday's WaPo editorial attacking the idea of "nonseverability." Nonseverability means that if one part of the reform legislation is struck down by the courts, the whole bill becomes void. Such a provision, the Post says, would be a "killer amendment" and "sneak attack" advocated by "opponents of campaign finance reform." Voting for nonseverability is really a "vote against reform." ... But why is it a killer amendment unless parts of the bill are almost certain to be struck down as unconstitutional? (Elsewhere in WaPo Charles Lane explains why the ban on "electioneering communications" by unions and corporations is the most likely to violate the First Amendment.) ... But to WaPo's credit, its editorial page -- unlike Howell Raines' NYT page -- is unable to really sustain a tone of thuggishly righteous faux-populist orthodoxy. So the Post almost immediately admits that proponents of "nonseverability" are appealing to a "real fear" -- the fear that the "soft money" limits will be upheld while the the ban on independent expenditures is thrown out, producing a "skewed" world "in which issue ads survive and flourish, while the party soft money, which now provides some protection against such ads, disappears." The Post says the proper response is to "fix the problem if it arises," because if the whole law is voided "years may pass" before a new law can be enacted. But why isn't it equally true that "years may pass" before the "problem" of an imbalance can be fixed? The Post editorial seems to be urging Congress to firmly grasp one horn of a dilemma. ... Wouldn't a better response be to increase the allowable donations to parties (maybe not to the $60,000 the Hagel bill provides) as a hedge, preserving the parties' ability to get their message out in a world that may otherwise be dominated by "independent" expenditures? Oh, I forgot! The NYT says that such a sensible Hagelian hedge would be "absurdly weak" and "dangerous," a "subterfuge" that would "institutionalize soft money" and "preserve unbridled fund-raising," a "fake reform ... designed to keep the corruption going and fool voters" into a "false consciousness that only serves the enemies of the people." .... [You made up that 'false consciousness' bit, didn't you?--ed. But not the rest.] (3/19)