Editor’s note: Piotr Brzezinski, a veteran of the Big Society Network and a former advisor to the leadership of Britain’s Conservative Party, has kindly agreed to share his thoughts on Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold. He hates it almost as much as I do.
Is McCain-Feingold the worst legislation of the past decade? I ask that question seriously. Congress’s ability to pass stupid, senseless and counter-productive laws never ceases to amaze, but few pieces of legislation have had such a systematically pernicious influence on America’s democracy. The problem, as even David Axelrod noted, is that McCain-Feingold has rendered politicians impotent while unleashing an uncontrollable flood of unaccountable outside groups.
Now that the Supreme Court has agreed to hear McCutcheon v. FEC earlier this week, however, it has the opportunity to finish what Citizens United started and strike down the rest of McCain-Feingold.
The claim in McCutcheon is narrow – Shaun McCutcheon, the plaintiff, has challenged only the overall, two-year cap on contributions – but it opens the door for the court to reassess campaign finance restrictions more broadly. Before McCain-Feingold, individuals, unions and corporations could give unlimited amounts of “soft money” to political parties, as well as limited contributions directly to candidates. Parties could then use their deep pockets to instil party discipline and exert some semblance control over the party’s direction by strategically allocating money to candidates around the country.
The McCain-Feingold bill, however, ended “soft money” contributions. This did nothing to reduce the amount of money in politics – instead funding simply shifted to outside groups, initially 527s and subsequently Super PACs – but it eviscerated the parties. Drained of funding, the official Republican and Democratic Party organizations (and, to a large extent, the candidates themselves) have been reduced to bit-part players in an election fought by uncoordinated proxies.
And so, as we saw in 2012, there was an explosion of extreme and unaccountable spending by outside organizations. These groups spent over a billion dollars, dominating the candidates’ own messaging and occasionally making wild allegations that no mainstream candidate would support (an Obama-supporting Super PAC even suggested that Romney caused a woman to die from cancer). In many ways, candidates are now victims of angry and extreme forces outside their control.
It’s tempting to blame this wave of mud-slinging money on Citizens United, which allegedly “undid” McCain-Feingold. In fact, however, it’s the lack of undoing that is problem: the Court stopped McCain-Feingold’s direct speech restrictions but left the “soft money” ban in place, thereby continuing to funnel money into unaccountable outside groups instead of official parties and candidates.
Despite the Cassandra-like bleating after Citizens United – the New York Times alleged it would herald a new “robber-baron era” – the judgment simply wasn’t the cause of unprecedented spending. In the most recent cycle outside spending increased by 262% according to Open Secrets, but this was actually less than 360% increase between 2000 and 2004 (i.e., immediately after the introduction of McCain-Feingold). As others have argued, campaign spending will always vary year to year based on idiosyncratic factors (candidate plausibility, election vehemence, etc.), and Citzens may have encouraged spending by reducing the uncertainty associated with donating to 527s, but it wasn’t the fundamental cause of the torrent. In other words, what many on the left most loathed about Citizens United – the runaway, unaccountable spending by outside organizations – is really more a side-effect of McCain-Feingold, which prevents that money from going to politicians directly, than the Court’s fault.