McCain-Feingold First Amendment reform

By W. James Antle III
web posted April 9, 2001

It's easy to understand why so many people support the McCain-Feingold bill. Seeing those we would like to call public servants currying favor with the rich and well connected in exchange for vast campaign contributions is aesthetically displeasing. The disproportionate influence wielded by the wealthy offends democratic sensibilities. Myriad financial scandals embroiling politicians angers taxpayers and encourages cynicism among voters.

John McCainFor all of these reasons and more, voters intuitively agree with Sen. John McCain (R-Ariz.) when he says that the system is broken and cries out for reform. While campaign finance reform is not really as major an issue among the American people as its most committed supporters would have us believe, the sentiment motivating it is quite popular. People don't trust politicians and feel that they are bought and paid for prior to assuming office.

That the motivation behind legislation may be good, or at least understandable, doesn't make the legislation any better. Bad laws have been written to accomplish any number of good things: Reducing gun violence, curbing poverty, improving race relations, expanding economic opportunities. Such legislation has often not only failed in its purpose but also produced negative unintended consequences.

Campaign finance reform is no different. The very system reformers now decry is the direct result of the first campaign finance reforms that limited individual contributions and sought to curtail the access of the wealthy. This 1974 legislation, a reaction to the excesses of Watergate and other scandals of the Nixon years, caused a ballooning of what we now call "special interests." Soft money, PACs and independent ad expenditures sprang forth and flourished in the environment liberal reformers created. It is impossible to predict what political actors -- and new abuses -- will result from McCain-Feingold.

Some version of McCain-Feingold is likely to pass and be signed into law by President George W. Bush. Yet interestingly enough, even its own sponsors concede that it is unconstitutional even by the standards of courts that tend to rubber stamp every expansion of government (the essence of the debate over "non-severability" was the preservation of as much of McCain-Feingold as possible in the probable event portions were struck down). Many people who are voting for it have serious doubts about it, but don't want to be seen as opposing campaign-finance reform and don't believe it is likely that the law will survive constitutional scrutiny.

McCain-Feingold is a bill trapped in its own intellectual contradictions. It is justified on the grounds that money has corrupted the political system and made elected officials unaccountable to ordinary voters. If this is true, why should these officials be trusted to reform the system that has so irreversibly tainted them? How could any bill that a group of bought-and-paid for legislators would pass possibly end this alleged plutocracy? Why would bought-and-paid for legislators vote for such a bill? As Thomas Sowell recently asked in his syndicated column, what if it is not money that corrupts politicians, but the politicians are already corrupt and in pursuit of money?

After all, there are many examples of politicians seeking out money from donors rather than donors wooing politicians with contributions Sen. Russell Feingold (D-Wis.) calls "legalized bribery." The most prominent example, cited by Sowell, is the phone calls Al Gore made from his office soliciting contributions. What does McCain-Feingold do to stop this lust for donations, other than alter the system in which they are pursued? Moreover, how would McCain-Feingold have prevented any of the Clinton-Gore fundraising scandals, most of which involved allegations of conduct that was already illegal?

In fact, McCain-Feingold like many other campaign finance reforms essentially hobbles challengers and benefits incumbents. Restrictions on fundraising and advertising are likely to benefit those who are best known and already may rely on the trappings of the office. Previous reforms have increased incumbents' reelection rates. The bill's supporters in many cases are as self-interested as the opponents. Secondly, many are basing their stance on McCain-Feingold (and the similar bill in the House, Shays-Meehan) on their perceived short-term partisan advantages. However, this is shortsighted strategic thinking to say the least.

It is difficult to predict which party will gain or lose under any campaign finance reform. There are good reasons for Republicans to view this bill as hostile to their party's interests, but it may not work out this way. Veteran conservative strategist Richard Viguerie recently observed that the 1974 reform measure approved by liberal Democrats created an environment in which Republicans were quite successful [ESR's lead article this week - ed]. He observes that there are many reasons to think that McCain-Feingold will similarly backfire on its Democratic supporters. Certainly, the GOP's soft-money advantage has been neutralized while its hard-money advantage remains intact. The Democrats would have suffered from a soft-money ban in the last election cycle, while George W. Bush was able to raise $100 million for the GOP primaries from individual donors. The party that gains from any reform is the party whose strategists best adapt to the changed system. Indeed, it can be argued that banning soft money will hurt political parties in general.

We must inescapably return to the one argument that makes reformers roll their eyes, but that they cannot deny. Legislation such as McCain-Feingold impinges on free speech. Reformers hate to hear that money is speech, but what are they proposing to do to limit the influence of money over politics? Restrict political advertisements in the last 60 days of a campaign, restrict donations to political campaigns and organizations, restrict spending of private money in attempts to influence public policy -- that is what this vision of reform entails, and it is plainly unconstitutional. I am a defender of freedom of expression, including the rights of Hustler magazine, topless dancers, foul-mouthed comedians, naughty heavy-metal bands, slice-and-dice moviemakers and "gangsta rappers." However, I don't pretend that any of this is what the Founding Fathers had in mind when they wrote the First Amendment. The First Amendment was intended to protect political speech -- precisely the kind of speech McCain-Feingold would limit.

A lot of what is said on television, in the newspaper, on the radio and on the Internet during a political campaign may be irresponsible, it may be inflammatory, it may be negative, it may be distortions, and it may even be false. But all of it is political speech. If we are going to limit freedom because it may be abused or because we fear that extent to which rich people will be able to exercise it, we will have trod a dangerous path. In our zeal to curb the admittedly large amount of money that goes into politics (which is still less than Americans annually spend on dog food), we will have restricted the right of people to influence public policy in their own country. Restricting the right of people to speak in opposition to the government and on political topics poses a threat to personal freedom.

For what purpose? While there are numerous examples of the pernicious influence money has on politics, its role can be exaggerated. It has repeatedly been demonstrated that congressional voting records are dictated far more by region, party affiliation and ideology than by campaign contributions. Those who are most liberal or conservative when first elected tend to still be among the most liberal or conservative when they retire. Most politicians I have worked with have raised large sums of money, but from people drawn to them by the stances they had already taken.

Often, there is money to be made on both sides of an issue. Opponents of "patients' bill of rights" legislation may reap large cash rewards from HMOs and other insurance companies. Supporters many receive heavy donations from trial lawyers. Opponents of gun control may benefit from NRA support, but they are equally likely to face hostile ads from Handgun Control, Inc. and similar groups. Many "special interests" are hardly driven by the wealthy at all. The average contribution to the National Right to Life Committee, for example, is just $35.

It is often alleged that the way money is spent by the "special interests" has a negative impact on public policy. But this is content-based discrimination against political speech based on subjective political opinions. Besides, the biggest obstacle to needed entitlement reforms advocated by many across the political spectrum (to name one example) is not moneyed interests. It is public opinion and the fear of not being reelected. Does this potentially negative public-policy result justify restrictions on democratic voting procedures or representative government?

Let us be honest. The reason so many pundits support McCain-Feingold is because their influence over the process will be magnified. Media conglomerates are one big business that isn't silenced by the McCain-Feingold regime. But this doesn't contribute to objectivity or free discourse.

James Madison believed that majorities composed of temporary coalitions of factions were likely to be less injurious to individual liberty than permanent majorities. Such "majorities of minorities" may seem sloppy to proponents of direct democracy but it has worked rather well in preserving our vast republic. If he were alive today, he might notice the hypocrisy of those who criticize the role of privately contributed money in politics but remain silent about (or are participants in) the promised disbursement of trillions of dollars of taxpayer money in order to win votes.

Which brings us to McCain-Feingold's fatal flaw: Yes, it is bad to live in a society where the wealthy can purchase special favors from the government. But perhaps the proper solution is not to limit their ability to make such purchases, but to reign in the government's abilities to perform favors for the chosen few. If government were less far-reaching, people would invest less money influencing its direction. Contributors may not be seeking control of the government as much as they are seeking protection from it; they would not feel the need to pay tribute to officials in a more limited, civic-minded government.

Freedom is not orderly or neat. It is subject to abuse and can produce unpleasant inequities. It is not a solution to all problems. But it is better than the alternative. And it should be given utmost consideration each time we ponder any kind of new reform.

W. James Antle III is a former researcher for the Rhema Group, an Ohio-based political consulting firm. You can e-mail comments to wjantle@enterstageright.com.

Other related articles: (open in a new window)

  • Will McCain-Feingold backfire on liberals? by Richard A. Viguerie and Steve J. Allen (April 9, 2001)
    Democrats are counting on campaign finance reform to put a stake in Republican fundraising. Richard A. Viguerie and Steve J. Allen say it might actually do the exact opposite




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