Commentary

The Reform That Corrupts

This essay originally appeared on Nationalreview.com(Copyright 2000 National Review).
Hardly had George W. Bush been sworn in as America’s 43rd president than his principal rival in the Republican primaries, John McCain, was on Bush’s heels pushing his latest version of campaign-finance reform. Never mind that most Republicans in and out of Congress are rightly wary of any such “reform,” McCain is a man on a mission. It’s a hard drive against soft money.

The first thing to know about campaign-finance reform is that, whatever they say, the bottom line is incumbency protection — and “they” includes congressional supporters, media promoters, and anyone else belonging to the “party of government.” The second thing to know is that we’re dealing here with a moving target: In their rush to find votes last fall, Senators McCain and Feingold were dealing changes by the hour, so it’s hard to know at any moment just what you’re up against. Finally, whatever it is is likely to be found unconstitutional. But maybe not: Last term’s Shrink Missouri case saw a crack in the Supreme Court’s nearly quarter century wall of opposition to most such reforms, so that’s what keeps the “good government” folks going. Let’s take those one at a time.

Unlike in the nineteenth century, congressional races today usually pit incumbents against challengers. Thus, it’s uneven from the start: incumbents enjoy name recognition, the power of office, the franking privilege, a knowledgeable staff, campaign experience, and, perhaps most important, easy access to the media. A challenger needs extraordinary resources to overcome those advantages. Yet that, precisely, is the need at which present law strikes. Since the post-Watergate “reforms” of 1974, individuals can give a candidate only $1,000 in any given election cycle, PAC’s only $5,000 — minuscule sums today.

In a free society, challengers should be able to do what they’re still able to do in many states — find a few deep pockets to get themselves started, then build from there, unrestrained by any financial restrictions save for the traditional prohibitions against vote selling and buying. That’s how Gene McCarthy challenged Lyndon Johnson in 1968. It’s how Jim Buckley challenged major party senatorial candidates in 1970. Today, they’d be out of luck — and out of the race. It’s no wonder, as one wag put it, that there was greater turnover in the old Soviet Politburo than there is today in the U.S. Congress. Even the electoral “revolution” of 1994 saw 90 percent of House incumbents running for reelection reelected. Today the figure is 98.5 percent.

Yet those same incumbents want to hobble challengers even further — as if 98.5 percent were not good enough. Many resist raising the “hard money” limits noted above, which haven’t changed since 1974. Thus, the 38-page McCain-Feingold-Cochran bill just out — typos and all, and note the additional name — doubles the amount of hard money individuals may contribute to state parties for use in federal elections. But it leaves intact the 1974 limits on direct, hard-money contributions to particular candidates.

The main target of the bill, however, is “soft money” — unregulated money given to political parties. Only in Washington could it be thought amiss that something isn’t regulated. And let’s be clear, the only reason we’re even talking about “soft money” is because of the limits on direct, hard-money contributions — almost the only restriction the Supreme Court upheld in 1976 in its seminal Buckley v. Valeo decision, which threw out most of the 1974 “reforms” of the 1971 Federal Election Campaign Act. Given those limits, it’s hardly surprising that millions of Americans who want to give more have found a way to do so — a path the Supreme Court has repeatedly refused to block for more than a quarter of a century.

But here come McCain, Feingold, and now Thad Cochran, proposing to “prohibit all soft money contributions to the national political parties from corporations, labor unions, and wealthy individuals,” says the McCain press release. Not only that, state parties that receive such unregulated funds under state law would be prohibited from spending them on federal elections. And to top it off, the bill, among many other things, incorporates the Snowe-Jeffords amendment of 1998 (aren’t Republicans a wonderfully eclectic bunch?), prohibiting “corporate and union spending on ads that mention federal candidates within 60 days of an election” — just when you’d want to mention such names. The details — too arcane to enter into here — are a lawyer’s delight. This is law so complex as to make it plain that political speech, which the Court has repeatedly said campaign contributions are, is meant to be burdened and chilled.

And for what? To prevent corruption? When asked by his Republican colleagues a year ago to point to the corruption he had in mind, Senator McCain came up empty. Like so many of his “good government” pals, both in and out of government, he’s against corruption only in general — because he can’t find it in particular. Rarely has a reform movement gone so far with so little to reform.

In the end, the Court may bring sense to this nonsense. But the Shrink Missouri case it handed down last January is troubling. Not that it changed anything in fact — it left intact Missouri’s limits on contributions to state candidates. But Justice Souter’s opinion for the majority splices snippets from Buckley to weaken Buckley’s standard of review, even as it says, characteristically, that “we do not relax Buckley’s standard.” Read Justice Thomas’s trenchant dissent to find Souter’s argument mercilessly skewered.

If the Court does stand firm for free speech, we’ll be spared yet another effort of power to protect itself. Before we get to that point, however, we should all be working to strip this “reform” movement of its overweening pretense. It’s not money that corrupts. It’s power. Money, being necessary for political speech, is the antidote to that corruption.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.