February 14, 2002 

House Democrats took advantage of the mass hysteria over Enron, forcing through the Shays-Meehan soft-money ban yesterday. There are several reasons why this is bad news for those who love freedom and democracy.

The bill is an answer - and a bad one at that - to a problem that really isn't a problem. Proponents of campaign finance regulation like to say there's "too much" money in politics, but they never explain how much would be "just enough" or demonstrate any negative effects of existing funding levels. All the hard evidence, in fact, shows that the causal relationship is reversed - the money goes to support those who stay true to their own ideologies faithfully. Corruption? To the contrary, the money in politics most often goes to fund the flow of information, raising citizen awareness of issues, increasing public participation, and enhancing the democratic process. Now look at which party strongly opposes that idea.

Every new measure passed to regulate political contributions makes the problem worse in the eyes of the reformers.

But the moderate reform advocates who four years ago put together the ideas that undergird the current McCain-Feingold did not believe that reform would be an eternal panacea, or that the basic problem was too much money in politics. Instead, we saw a system that had careened out of control, partly because of the cumulative consequences of earlier reform efforts and the 20 years that followed them.

George Will thinks that is part of the appeal, especially to liberals - permanent employment on a job never finished. If everything the regulators have done until now has only aggravated the problem in their eyes, then why do we let them keep "fixing" it? If throwing gasoline on the fire hasn't worked yet, can it possibly be because we haven't thrown enough gasoline yet?

The Shays-Meehan bill has many pernicious effects. As Patrick Ruffini recently noted, Big Media is all in favor of increased regulation of private citizens' speech because it enhances their own voice and inflates their bottom line.

The media's jihad to cleanse politics of self-interest is itself motivated by self-interest. Unlike, say, education or Social Security, the media has a very definite stake in this fight. Campaign finance reform means less paid advertising at election time (the very ads the media like to rip to shreds in their "ad watches"), and that means the media's voice only gets louder in covering campaigns. Less paid political advertising also means that local affiliates get to fill these new ad slots at higher rates than campaigns have to pay. With campaign finance reform, the media gets more power.

The new regulations dampen candidates' ability to communicate about themselves and limits third-party participation by interested citizenry. Who's left? Your political information will be delivered more and more by the establishment media, whose bias is unnoticed by the masses and whose self-interest will always sway stories. We’ve all signed an intellectual suicide pact, by surrendering our rights to the sole possession of Big Media like AOL-Time Warner, NBC, and the Washington Post. Does that surrender make our democracy stonger, or tear at its roots?

Campaign finance regulation interferes with democracy a second way - by protecting incumbents. As if the current retention rate - in excess of 97% - weren't bad enough, campaign finance regulation makes it harder for challengers to raise money and communication their challenging messages. Hard money flows to the incumbents disproportionately:

Studies show that House incumbents start every election with roughly a built-in $500,000 advantage, thanks to name recognition, the ability to pass out pork and go to ribbon-cutting ceremonies, and, of course, to the free campaign literature that congressional offices can mail out at taxpayer's expense during the year. Let's call it Head Start for incumbents.

Soft money has been one way for parties to make up the gap and mount credible challengers to the other party's incumbents. Banning soft money will skew the playing field even further than it already is.

To make incumbency protection worse, the Shays-Meehan bill doubles the amount of hard money incumbents may accept. Yes, challengers may also accept more hard money... if they can find it. Raising the hard-money limit while banning soft money at the same time doesn't just add to, but multiplies the advantage incumbents have in every election. Shays-Meehan will make incumbents safer and challenges riskier, at the expense of real electoral choice.

Eliminating soft money may also hurt minority participation, says Rep. Albert Wynn.

Many of my colleagues in the Congressional Black Caucus are concerned that the original purpose for soft money - voter registration drives and party building - is being lost. More, not less, needs to be spent on voter mobilization.

Let me repeat that last - more, not less.

Banning soft money from parties reduces the accountability of those parties, and instead encourages advocates to channel money into third-party special interest groups - whose real agendas may or may not be known. Banning soft money will swell the flow of money to ad-hoc shell organizations which disappear quietly after the election, rather than the political parties which have a stake in maintaining long-term credibility. What kind of effect can we expect that to have on the current low-brow state of political discourse?

Shays-Meehan has an answer for that, though - ban genuine issue advocacy by legitimate third party groups - like the NRA, the ACLU, Greenpeace, Right to Life, Planned Parenthood, even Public Citizen and Common Cause.

Another provision, aimed at curbing thinly veiled attack ads by outside groups, would ban corporations, unions and advocacy groups from targeting candidates by name in "issue ads" within 60 days of a general election or 30 days of a primary.

But bans on political speech of legitimate third party groups cannot survive a court challenge. Political speech is at the core of the First Amendment’s zone of protection, and courts will look at such provisions with the harshest scrutiny.

Even the ACLU has come out strongly against this provision:

The only individuals and groups that will be able to characterize a candidate's record on radio and TV during this 60 day period will be the candidates, PACs and the media. Further, members of Congress need only wait until the last 60 days before an election (as they often do now) to vote for legislation or engage in controversial behavior so that their actions are beyond the reach of public comment and, therefore, effectively immune from citizen criticism.

They correctly note that the new law will limit the ACLU's right to get involved in issue advocacy just at the time such advocacy is most important.

Proponents of the regulations say the 60-day ban is desirable because ads run outside the allowed window have "much less impact." But they forget that the constitution nowhere allows limits on political speech based on increased effectiveness. In fact, such an effect makes it more likely that the regulation will fail a court challenge.

Ironically, these very regulations may come back to haunt the media most, because ultimately, the courts will have to decide who is entitled to disseminate information about politics and who is not. Why does the McLaughin Group have a greater right to broadcast their political views than I do? Why does the Washington Post have a greater right to publish their editorials than I do? I don’t think they do, and the courts won’t, either. But obviously, Congress does.

Other parts of the bill are highly likely to perish in the court system, too. It is clear that Americans would not and should not tolerate similar limits on their speech in any realm other than the political. Limit money for religious broadcasting? No way. Limit money for just about anything else? No way.


As to whether limits on political spending abridge freedom of political speech, consider the Supreme Court's analogy: Would the constitutional right to travel be abridged if government limited everyone to spending only enough for one tank of gasoline? Or would the First Amendment right of free exercise of religion be abridged if government limited the right to spend money for church construction or for proselytizing?

The courts won’t even let Congress crack down on porn – the least likely area for protection under the First Amendment. Can anyone think they will look favorably on new limits on political speech?

Probably not. The Supreme Court has been very clear that regulation of political contributions treads a fine line:

[T]he Supreme Court has said repeatedly that, under the First Amendment, campaign contributions and expenditures are protected speech. Thus, more precisely, the Court has said that regulations of political contributions and expenditures will be upheld only if they achieve a compelling governmental interest by the least restrictive means - the most difficult of constitutional hurdles.

The Court's previous actions in striking down much of prior so-called reforms are called loopholes by regulation junkies, but the First Amendment is not a loophole. It is a core freedom of our nation. This is ultimately why campaign finance regulation is not only unconstitutional, but undemocratic.

Let's make a bet. If the proponents of Shays-Meehan are right, then we'll see less money coming into politics, greater citizen participation, and lower rates of incumbent retention as a result. If I'm right, then over the next ten years, we'll see exactly the opposite - more money in politics, less citizen participation, lower voter turnout, and incumbent retention in excess of 99%. Nice results, "reformers." You really stuck it to democracy this time. W

 February 12, 2002 

Michael Krempasky riffs:

The Arlington Young Democrats are sponsoring a "Buy a Date With A Democrat" charity auction. So...without the expected remarks about family values, corruption, or anything remotely close to prostitution...I'm thinking of going.
After all, my house needs cleaned, my car needs waxed, my laundry is piling up, those IRS forms need filling out - and I've always wanted to actually see a real-live Democrat do an honest day's work.

Best... post ... ever! W

Dineen and I will be moving (just down the road) within the next two months. Since ADSL service is apparently not available at our new address, it looks like we're going to have to get a cable modem. Judy Sammuel's story makes me wonder if we shouldW

 » archives «