The Moneybags Bill
Let the executive branch be.

By Arthur F. Fergenson & Mark R. Levin
February 19, 2002 9:35 a.m.

EDOTOR'S NOTE: Shays-Meehan, the House version of the Senate's McCain-Feingold campaign-finance-reform bill, passed the House last week. Last Spring, Buckley v. Valeo attorney Arthur Fergenson and NRO contributing editor Mark R. Levin warned that the legislation would not be the end of money in politics. Their piece is reprinted here.

he 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.