The Supreme Court’s campaign-finance decision is a disaster for limited government under the First Amendment. Who is responsible for this debacle? The fact that congressional Democrats provided most of the votes to pass the McCain-Feingold restrictions is not surprising, as they have never been sympathetic to the freedom to spend money on politics. Yet, Republicans are ultimately responsible for this disaster, and it is they, not the Democrats, who may make things much worse in the near future.
The GOP had several chances to stop McCain-Feingold. Instead, too many “conservatives” jumped on the bandwagon for speech restrictions. In the end, Senate Republicans could not muster the votes necessary to sustain a filibuster. On the House side, one in five Republicans supported McCain-Feingold in crucial votes.
At the time, most conservatives were not overly concerned that Congress had passed McCain-Feingold. After all, a conservative Republican occupied the White House, and he had explicitly promised to veto any campaign-finance restrictions that reached his desk.
Critically, President Bush relied on the calculations of senior political adviser Karen Hughes, and decided to ignore his earlier promise not to sign McCain-Feingold. Bush’s decision serves his political self-interest: McCain-Feingold makes it easier to raise hard money, which is Bush’s forte and one key to his reelection.
On campaign finance, President Bush’s actions are eerily reminiscent of two earlier Republican presidents who also signed laws restricting political freedom. Like President Richard Nixon, our current president appears to prioritize reelection over conservative principles.
In one respect, Nixon was more courageous, if not more principled, than Bush: Nixon did veto one campaign-finance bill in 1970. President Gerald Ford also failed to stand up for political liberty in 1974, but at least he had the excuse of post-Watergate hysteria. The current president has no similar excuse.
Finally, Republican presidents appointed most of the Supreme Court majority that upheld McCain-Feingold. Justice John Paul Stevens, another of Ford’s gifts to conservatism, continues to give voice to the muse of Republican quislings circa 1975. Of the disappointing Justice David Souter, appointed by President George H.W. Bush, nothing need be said.
Since her appointment by President Reagan, Justice Sandra Day O’Connor has repeatedly proved that Republican presidents nominating justices should worry less about current political fashions and more about intellectual distinction and a principled outlook, a point reinforced yesterday by the principled, if unfashionable, dissents of Justices Antonin Scalia and Clarence Thomas.
The Republicans not only brought us to this point but, in the near future, congressional Republicans will be tempted to make things even worse. In 1976, the Supreme Court said in the famous Buckley decision that freedom of speech depended on spending money. If Congress regulated such spending, it also restricted freedom of speech. Thus, spending limits were constitutionally prohibited. For 27 years, the ban on spending limits has remained an important bulwark of liberty.
Reading between the lines of yesterday’s decision, however, we believe a majority of justices now accept Justice Stevens’s view that spending money has no connection to freedom of speech. A majority of the justices now may be looking for an opportunity to overturn Buckley, thereby validating any campaign spending limits enacted by Congress.
Republicans are likely to control Congress for the near future. Spending limits are useful to a party in power because they make it harder to beat incumbents. If Republican control of the House comes into question, they will be sorely tempted to pass spending limits or other restrictions on campaign finance.
In coming years, Republicans must decide whether they believe their own rhetoric about campaign finance or whether they value political success more than fundamental political principle. If they allow politics to trump principle, power will have corrupted the Republicans in a way that no legislation could ever reform.