The Reform That Corrupts

This essay originally appeared on Nation​al​re​view​.com (Copyright 2000 National Review).

Hardly had George W. Bush been sworn in as America’s 43rd president than hisprincipal rival in the Republican primaries, John McCain, was on Bush’sheels pushing his latest version of campaign‐​finance reform. Never mind thatmost 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 softmoney.

The first thing to know about campaign‐​finance reform is that, whatever theysay, the bottom line is incumbency protection — and “they” includescongressional supporters, media promoters, and anyone else belonging to the“party of government.” The second thing to know is that we’re dealing herewith a moving target: In their rush to find votes last fall, Senators McCainand Feingold were dealing changes by the hour, so it’s hard to know at anymoment just what you’re up against. Finally, whatever it is is likely to befound unconstitutional. But maybe not: Last term’s Shrink Missouri case sawa crack in the Supreme Court’s nearly quarter century wall of opposition tomost 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 pitincumbents against challengers. Thus, it’s uneven from the start: incumbentsenjoy name recognition, the power of office, the franking privilege, aknowledgeable staff, campaign experience, and, perhaps most important, easyaccess to the media. A challenger needs extraordinary resources to overcomethose advantages. Yet that, precisely, is the need at which present lawstrikes. Since the post‐​Watergate “reforms” of 1974, individuals can give acandidate 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 ableto do in many states — find a few deep pockets to get themselves started,then build from there, unrestrained by any financial restrictions save forthe traditional prohibitions against vote selling and buying. That’s howGene McCarthy challenged Lyndon Johnson in 1968. It’s how Jim Buckleychallenged major party senatorial candidates in 1970. Today, they’d be outof luck — and out of the race. It’s no wonder, as one wag put it, that therewas greater turnover in the old Soviet Politburo than there is today in theU.S. Congress. Even the electoral “revolution” of 1994 saw 90 percent ofHouse incumbents running for reelection reelected. Today the figure is 98.5percent.

Yet those same incumbents want to hobble challengers even further — as if98.5 percent were not good enough. Many resist raising the “hard money“limits noted above, which haven’t changed since 1974. Thus, the 38‐​pageMcCain‐​Feingold‐​Cochran bill just out — typos and all, and note theadditional name — doubles the amount of hard money individuals maycontribute to state parties for use in federal elections. But it leavesintact the 1974 limits on direct, hard‐​money contributions to particularcandidates.

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

But here come McCain, Feingold, and now Thad Cochran, proposing to “prohibitall soft money contributions to the national political parties fromcorporations, labor unions, and wealthy individuals,” says the McCain pressrelease. Not only that, state parties that receive such unregulated fundsunder state law would be prohibited from spending them on federal elections.And to top it off, the bill, among many other things, incorporates theSnowe‐​Jeffords amendment of 1998 (aren’t Republicans a wonderfully eclecticbunch?), prohibiting “corporate and union spending on ads that mentionfederal candidates within 60 days of an election” — just when you’d want tomention such names. The details — too arcane to enter into here — are alawyer’s delight. This is law so complex as to make it plain that politicalspeech, which the Court has repeatedly said campaign contributions are, ismeant to be burdened and chilled.

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

In the end, the Court may bring sense to this nonsense. But the ShrinkMissouri case it handed down last January is troubling. Not that it changedanything in fact — it left intact Missouri’s limits on contributions tostate candidates. But Justice Souter’s opinion for the majority splicessnippets from Buckley to weaken Buckley’s standard of review, even as itsays, characteristically, that “we do not relax Buckley’s standard.” ReadJustice Thomas’s trenchant dissent to find Souter’s argument mercilesslyskewered.

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

Roger Pilon

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