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Cash, corruption, and free speech
After years of bitter haggling, Congress finally passed campaign-finance reform last year. But in a few weeks, the U.S. Supreme Court will hear arguments that the law violates the right to free speech. What’s at stake?
The McCain-Feingold campaign-finance act attempts to close two large loopholes in previous laws. In theory, these laws strictly limited how much money any single person, organization, or corporation could give to congressional, Senate, and presidential candidates. In practice, major contributors circumvented the law by giving five- and six-figure checks directly to the Democratic or Republican national committees—so-called “soft money” contributions. The parties were supposed to use these contributions only for internal, “party building” activities, but found ways to funnel them to key campaigns.
How did the parties do that?
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By funding phone banks, get-out-the-vote drives, and sending in party operatives to help specific candidates. Parties, and special-interest organizations like the National Rifle Association and the Sierra Club, also evaded contribution limits by blitzing the airwaves with advocacy ads promoting such causes as the environment, gun ownership, and women’s rights. The ads often included coded messages attacking candidates (“If you’re opposed to light sentences for rapists, call this number and tell Sen. Plushbottom what you think”). In the 2002 elections, the GOP raised $250 million in soft money; the Democrats, $246 million. Much of it went to attack ads.
What does the new law do?
It prohibits soft-money contributions altogether. And to prevent the blitz of attack ads, it bans all political ads within 60 days of an election, except those the candidates themselves buy. Sens. John McCain and Russell Feingold and a variety of “good government” groups say these restrictions were necessary to counteract the corrupting influence of special-interest contributions. “In Washington, it’s the special interests that run things,” said McCain. He and other reformers say negative ads had become a critical factor in elections, making candidates dependent on interests that could fund them. The ads, funded by mysterious-sounding front organizations (“Americans for Clean Water”), also confused voters and turned them off to politics, the reformers say—and opened the door to interest groups demanding rewards for their generosity.
Are favors given?
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Of course. In June, for example. The Washington Post reported that a Kansas-based energy firm, Westar, tried to win a government exemption from certain SEC rules. Its strategy, according to unearthed company e-mails, was to “win a seat at the table” by contributing $25,000 in soft-money contributions to a committee connected to House Majority Leader Tom DeLay (R-Texas), along with direct contributions to key lawmakers. After the checks were cashed, Rep. Joe Barton (R-Texas) added a provision to the legislation that would have given Westar the exemption it sought. (After some bad publicity, the bill was later killed.) DeLay and Barton deny any quid pro quo. This kind of blatant favor buying, said Common Cause’s Matt Keller, goes on all the time. “In any place other than Washington,” Keller said, “this would be viewed as bribery.”
So why oppose reform?
Opponents say the McCain-Feingold law violates the First Amendment by “criminalizing” free speech. People and corporations, they say, have a constitutional right to buy ads to express their views, and to give money to the political party of their choice. Banning the NRA or the Sierra Club or a pro-choice group from airing advocacy ads within 60 days of an election, these critics say, is no less outrageous than forbidding newspapers from making political endorsements in October and November. The McCain-Feingold law “diminishes the voices of American citizens in their effort to participate in the political process,” said Sen. Mitch McConnell (R-Ky.). “Spending is speech.” A host of interest groups on both the left and right agree, including the AFL-CIO, the ACLU, and the NRA.
Is the free speech argument holding up?
Somewhat. In a sprawling 1,600-page decision that even legal experts found incomprehensible, an appeals court in May threw out some parts of the law and upheld others. The court overturned the outright prohibition on soft money, as long as it was truly used for party-building activities. But the court approved the ban on parties and special-interest groups funding advocacy ads, if those ads support or attack individual candidates—a standard open to interpretation. Now it’s up to the Supreme Court to sort it all out. The justices agreed to hold an extraordinary four-hour argument session on Sept. 8, nearly a month before the term normally starts. The decision signaled the court’s eagerness to resolve the matter before the 2004 elections get into full swing.
Why the urgency?
Both parties—and their frequent contributors—want to know the rules before the next spending spree begins. Already, lobbyists and political operatives have been devising new ways to raise and spend soft money. One of them is to set up tax-exempt organizations that act as surrogates for the political parties. One group, Progress for America, operates out of a company run by the former political director of the Bush-Cheney 2000 campaign. Another is run by former top Clinton aides who are close to Democratic Chairman Terence McAuliffe. Millions are also now being diverted to political action committees devoted to specific causes and industries—not exactly the blow to special-interest politics reformers dreamed about. “It’s a large river of money flowing, and it flows into many tributaries,” said political scientist Larry Sabato. “And if you block off one tributary, that means more money will flow into the other tributaries.”
