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mainstream media, liberal pundits, self-described good-government
types, and the Democratic party have all
been
clamoring for the House to pass the Senate's McCain-Feingold bill
in unmodified form. They are concerned that the conference-committee
process of negotiating on two different bills would harm the passage
of McCain-Feingold. Believing McCain-Feingold to be a fine piece
of reform legislation, the Common Cause acolytes are certain that
the best way to enshrine their reformist impulses into law is if
both houses of Congress pass the same bill. Indeed, recent news
reports have John McCain working closely with House Democratic Leader
Richard Gephardt and Rep. Sheila Jackson Lee (D., Tex.) for that
purpose.
House Speaker Dennis Hastert (R., Ill.) has committed reluctantly
to bringing a campaign-finance bill to the floor in June. House
Republicans would be well advised to take a closer look at McCain-Feingold.
After all, here's the dirty little secret: The bill's probable effect
will be to lift current contribution limits from $1,000 to $12,000
per contributor per candidate per election. Since a primary and
general election allow for two contributions per person per candidate
per election cycle, the current limit would shoot up from $2,000
to $24,000.
These higher limits arise from that part of the McCain-Feingold
bill that was added to offset the financial advantage that self-funded
millionaire candidates purportedly wield over their opponents. Wealthy
candidates are able to contribute without limitation to their own
campaigns. This exception results from the Supreme Court's ruling
in Buckley v. Valeo. The Court held that the only
constitutionally acceptable ground for regulating campaign financing
is to control corruption or its appearance. Therefore, no law can
limit how much candidates contribute to themselves. The Court rejected
as unconstitutional any limitations on contributions or expenditures
based on reasons other than the prevention of corruption. For example,
the Court held that "reducing money in politics" or other such rationales
violate the First Amendment.
Recognizing that the millionaire exception was etched in constitutional
stone, the Senate sought to mitigate its perceived unfair effect
by allowing poorly funded opponents of self-funding millionaires
the right to seek money in big chunks from wealthy contributors.
Under McCain-Feingold, as the disparity between the millionaire
and the pauper grows, the cap on contributions is lifted higher,
eventually reaching a multiple of six times the base figure.
The Senate passed this measure only to mitigate the unfairness of
the election law in regulating campaign contributions to the opponents
of millionaires. No senator apparently believed that under-funded
paupers running against self-funded millionaires were less corruptible
by contributions than other candidates for Senate. A few moments'
thought would lead to the opposite conclusion: Poorer candidates,
desperate for money to stave off the millions of dollars being poured
into a campaign by a wealthy opponent, would, at least theoretically,
be far more likely to be corrupted by big contributions.
Having set the bar for non-corruption at six times the base limit,
the Senate then proceeded to double the base limit without altering
the special "pauper" multiplier of six, i.e., the new base limit
under McCain-Feingold was raised from $1,000 to $2,000 per election;
therefore, six times the new base limit is $12,000 per election.
Thus, an individual can contribute up to $12,000 in a primary election,
and up to $12,000 in a general election, for a total of $24,000
per candidate per election cycle. If these limits are not corrupting
for one candidate, they are not corrupting for any, and the lower
limits violate the Constitution. The only reason for keeping the
$2,000 limit for some candidates but a $12,000 limit for others
is to keep expenditures down, which is unconstitutional under Buckley
v. Valeo.
It is highly likely that the Supreme Court, consistent with Buckley
v. Valeo, would find that the new $2,000-contribution limit
would violate the First Amendment. The Court could not overturn
the higher limit because it is not unconstitutional to allow higher
limits for contributors. Moreover, the Court has no authority to
rewrite laws to save the Senate from the unintended consequences
of its actions. The result: The highest limits for any candidate
would apply to all candidates.
The Supreme Court will also strike down McCain-Feingold's attempt
to re-regulate issue advocacy. The bill's supporters make no pretense
that these new rules are any different than those rejected in Buckley
v. Valeo and subsequent cases. While the senators are frustrated
by other people's freedoms getting in the way of their reelection
campaigns, the Founders thought better of it.
Stripped of its unconstitutional provisions, should McCain-Feingold
become law there will be more money in politics, not less.
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