Commentary

The Beginning of the End of McCain-Feingold

On the surface, the partisans of restricting campaign finance are riding high. In 2002, they passed McCain-Feingold, which imposed major new limits on fundraising and political advertising. Late last year, the Supreme Court said yes to those restrictions, and all but invited Congress to pass more. Yet, as Richard Nixon once remarked, the greatest danger in politics comes at the moment of greatest victory. Indeed, political problems for McCain-Feingold have arrived, and so has a solution.

Over 90 percent of congressional Democrats voted for McCain-Feingold. They expected something for their votes. The law banned unregulated contributions to the political parties. For much of the 1990s, the Democrats had trailed the Republicans in soft money fundraising, so a ban on such contributions made partisan sense. However, with Republicans in the majority, the Democrats had to give up something to get their soft money ban. They ended up trading an increase in federal contribution limits to get the soft money ban. That was a big compromise for the Democrats. Republicans have always been much better than Democrats at raising contributions under federal limits. Doubling the contributions meant Republicans would have an easier time raising even more money.

So far, the consequences of McCain-Feingold seem pretty bad for the Democrats. For instance, it turned out that Democrats had learned how to raise soft money: From 1998 to 2002, they were dead even with the Republicans. Since the Democrats were well behind in hard money fundraising, banning soft money had worsened their overall fundraising relative to Republicans.

Meanwhile, the increase in hard money limits turned into a predictable disaster for the Democrats. Republicans in Congress raised more than twice as much money as their Democratic counterparts, and the Bush campaign found itself with 10 times the money John Kerry had by late February.

About a year ago, the Democrats realized that supporting the soft money ban was a mistake. They began setting up organizations that might be able to legally raise and spend large donations to defeat President Bush. The financier George Soros gave over $10 million to the cause, and the leaders of these soft money fronts began talking confidently of the potential to raise hundreds of millions of dollars.

Once again McCain-Feingold tripped them up. The law had made it a crime to use large soft money donations to pay for political ads that mentioned the name of a candidate for federal office 60 days before a general election (and 30 days before a primary). The Democratic groups could still run the ads, but they had to raise the money within federal contribution limits. Of course, the groups existed for the purpose of raising large donations well beyond federal limits.

Recently, the Federal Election Commission ruled that the Democratic front groups could not spend the money they had raised on ads that mentioned only President Bush. The groups may find a way around the ruling, but they hardly needed the headache. Congressional Democrats must be wondering what they were thinking when they voted for McCain-Feingold.

They aren’t the only ones. A group of 364 small progressive organizations realized that the expansive interpretation of McCain-Feingold favored by the staff of the Federal Election Commission would make their political activities all but impossible. McCain and his allies paint themselves as the foes of corporate Americans. But their restrictions on money in politics weaken political competition from the right and the left.

Fortunately, some in Congress are stirring to action. Rep. Roscoe Bartlett (R-Md.) recently introduced the “First Amendment Restoration Act,” which would repeal the McCain-Feingold restrictions on political advertising just before an election. Bartlett faces an uphill struggle to enact his bill, not least because some of his fellow House Republicans are vulnerable and thus benefit from the restrictions on advertising in McCain-Feingold.

Two centuries ago, Congress passed the Sedition Act, which punished critics of the government. Inveighing against the Act, James Madison pointed out that “the right of freely examining public characters and measures, and of communication thereon, is the only effectual guardian of every other right.” By restricting the rights of all Americans — liberal or conservative, Democrat or Republican — to publicly examine and to criticize members of Congress, McCain and his allies may be creating a bipartisan coalition that will one day pass Rep. Bartlett’s bill. That day cannot come too soon.

John Samples is director of the Center for Representative Government at the Cato Institute.