A Reform That Doesn't

By Paul Starr
The American Prospect, May 7, 2001

Let's say we decided to build a dam along a river. If we merely agreed to erect a small barrier that the river would run around, flowing easily through new channels and old ones, no one would celebrate our plan as a great achievement. But that is how editorialists have hailed the Senate's passage of the McCain-Feingold bill, despite the scant likelihood that the partial barriers it erects will stem the flow of big money or seriously diminish its influence in politics.

As passed by the Senate, McCain-Feingold virtually invites circumvention. The bill bans unlimited soft-money donations to the parties and bars advocacy-group advertising that mentions candidates during the 30 days before a primary and 60 days before a general election. I don't expect the limits on advocacy-group advertising to survive a trip to the Supreme Court, nor do I think they should (as I wrote in "The Loophole We Can't Close," TAP, January–February 1998).

But even if the Court upholds this restriction on political speech, parties and advocacy groups should be able to evolve a new division of labor. Rationally, the advocacy groups should concentrate their advertisements in the earlier stages of campaigns, while the parties husband more of their hard money to pay for advertising during the final phase. Hard money will actually be easier to raise under the Senate's version of McCain-Feingold, which increases the caps on individual contributions from $1,000 to $2,000 per campaign. Political action committees (PACs), which can give up to $10,000 to candidates and $30,000 to parties, should make a big comeback. And wealthy individuals remain unrestricted as direct sponsors of political communication.

Then there is the potential of the state parties to assume more of a role in campaign finance and undo the entire effort to limit contributions. Soft-money donations to the national parties were originally supposed to go into party building. While McCain-Feingold bans soft-money contributions to the national parties, an amendment adopted by the Senate allows donors to state parties to give up to $10,000 for party-building purposes. Ten-grand contributions spread among state parties may make up at least part of the soft money that parties lose at the national level. Federal authority to regulate state elections is certain to be subject to constitutional challenge, so even this $10,000 limit may not survive.

By rechanneling political contributions from parties, which are accountable in elections, to interest groups, which are not, McCain-Feingold could have some worrisome side effects. It would increase the dependence of parties and candidates on advocacy groups, private interests, and wealthy individuals willing to act as direct sponsors of independent political expenditures. If the law were to be vigorously enforced, it would likely lead to new criminal investigations into political communication among parties, candidates, and private groups and individuals to determine whether they were coordinating their campaign efforts. In short, for the sake of an ineffectual curb on political money, we could weaken the parties at the expense of their interest-group partners. And we would subject to federal inquiry and prosecution forms of communication that have been a normal part of American politics during the entire history of the country.

The political parties already depend on partnerships with interest groups--the Republicans, for example, on the National Rifle Association; the Democrats on the AFL-CIO. Under McCain-Feingold, these partnerships would become even more critical, particularly in early-stage campaign finance. Historically, the parties have served a valuable function in aggregating and reconciling interest-group pressures; they will be less able to resist such pressures in a campaign finance system that drives them to use the groups as their surrogates for raising money and communicating with the voters.

No one needs to tell the advocacy groups what's at stake. The outcome of the last election offers a vivid example of how crucially their interests depend on which party controls the White House and Congress. When the Republicans took control of both branches, conservative groups saw their causes ascend to the national political agenda, while liberal organizations saw theirs disappear. To make illegal the efforts of such groups to influence elections would be astonishing. They have a legitimate interest in electoral persuasion.

Most liberals used to agree that political speech deserves the highest level of First Amendment protection from government investigation and control. Campaign finance reform threatens to invert that understanding, subjecting political communication to a new kind of policing. Some supporters of campaign finance reform seem to think that these civil libertarian objections are silly or alarmist. But if McCain-Feingold becomes law, it could easily become a basis for federal authorities to investigate and prosecute their political opponents.

There is a right way to do campaign finance reform, and it involves public financing of campaigns. The "clean money" initiatives have shown the way. Without threatening anyone's free speech, public financing can put challengers on a more equal footing with incumbents and attenuate the driving imperatives of the current money chase. Forget about damming the river of independent expenditures. Trying to block every possible pathway for private money is both dangerous and futile. It is no advance for the cause of political equality if its pursuit jeopardizes political liberty. And to put liberty at risk for the sake of so ineffectual a piece of legislation as McCain-Feingold would be a huge mistake.

Copyright 2005 by The American Prospect, Inc. Preferred Citation: Paul Starr, "A Reform That Doesn't," The American Prospect, May 7, 2001. This article may not be resold, reprinted, or redistributed without prior written permission from the author. Direct questions about permissions to permissions@prospect.org.