The trouble with our political campaigns, in the view of many critics and ordinary citizens, is that big contributions buy too much power; special interests, lobbyists, and campaign consultants have too much clout; gazillionaire candidates have an unfair advantage; negative attack ads pollute the airwaves; the sources of funding for many ads are hard to identify; and campaigns are too long.
So it might be interesting, and even a bit amusing, to explore how the McCain-Feingold-Shays-Meehan bill—once the courts are done with it and the loopholes are fully operational—could mean even more clout for special interests, lobbyists, and campaign consultants; give an even bigger advantage to wealthy candidates; spawn even more negative attack ads with hard-to-identify sponsors; make campaigns even longer; and raise the maximum individual contribution to some congressional candidates—conceivably even all of them—from the current $1,000 per election to $12,000.
This is not to suggest that all of these unanticipated (or at least, unadvertised) boomerang effects are inevitable, or even likely. Nor is it to deny that the bill would produce some clear benefits, such as making it harder for candidates to extort huge sums of money from corporations and other wealthy interests. But the post-enactment trajectory of the campaign reforms of the early 1970s is suggestive: The courts sliced them to pieces, the lawyers found loopholes, and we ended up with a system considered by many reformers to be worse than the one we had before reform.
How could a bill designed to curb Big Money have the bizarre effect of raising twelvefold the maximum contribution to a congressional candidate? Like this: One provision would double the maximum contribution to $2,000 in order to make up for the effects of inflation since the reforms of the 1970s. Another provision would multiply this new $2,000 maximum by as much as six for Senate candidates (and by as much as three for House candidates) who are running against self-financed multimillionaires. The size of the multiple would depend on the amounts spent by the self-financed candidate.
This so-called "millionaire-opponent provision," beloved by many incumbents, presents a legal problem that could play out in surprising ways: Candidate X could complain that this provision violates equal protection of the laws and the First Amendment by limiting the contributions she receives to $2,000, while allowing Candidate Y, whose opponent is self-financed, to receive up to sixtimes that amount. A would-be $12,000 contributor to X could make a similar claim. He could invoke the Supreme Court's 1976 ruling, in Buckley v. Valeo, that campaign spending and contributions alike involve constitutionally protected speech; that spending cannot be limited at all; and that contributions can be limited only insofar as necessary to avoid corruption, or the appearance of corruption.
It would be hard to argue with a straight face that candidates desperate for the money to compete against self-financed opponents are less corruptible than others. This leaves only two possible justifications for the millionaire-opponent provision: Congress has determined either that $12,000 contributions present no real danger of corruption, or that a little corruption is OK in the cause of protecting incumbents (among others) against self-financed candidates. The first justification would lead one to the conclusion that all candidates should be able to take $12,000 contributions. And the second would run into Buckley's ruling that offsetting self-financed candidates' personal wealth is not a weighty justification for impinging on constitutional rights.
Thus, in the view of five campaign finance law experts I consulted, the Supreme Court might well hold that there is no constitutional basis for the unequal treatment of candidates X and Y. (Others, especially supporters of the bill, disagree.) Baltimore lawyer Arthur F. Fergenson, who first explored this issue last May in a National Review Online article co-authored by Mark Levin, argues that the logical remedy would be to raise the limits for individual contributions to X and all other congressional (or at least Senate) candidates to $12,000, because it is the lower limit, not the higher one, that presents the First Amendment problem. Such a decision would transform McCain-Feingold-Shays-Meehan into a catalyst for a bonanza of big hard-money contributions—a perverse result, or a delicious one, depending on your point of view.
To be sure, it seems more likely that the Court, to avoid mangling Congress's announced intent of getting Big Money out of politics, would sever the millionaire-opponent provision and leave all individual contributions capped at $2,000. This outcome, acceptable to most reformers, would come as a nasty surprise to lawmakers who championed the millionaire-opponent provision mainly to protect themselves.
Even if the courts uphold the millionaire-opponent provision, the bill as a whole is likely to make it harder to compete against such opponents because its most important provision—prohibiting large corporate, union, and individual contributions of soft money to political parties—would (if upheld) sap the parties' ability to come to the aid of financially strapped nominees.
Also, the bill seems almost certain to enhance the power of both hard-right and hard-left special-interest groups at the expense of the more centrist national political parties. Much of the soft money now collected by the parties from corporations, unions, and wealthy individuals would then flow to groups allied with—but not controlled by—the national parties (as well as to state and local parties).
Indeed, a loophole that the House inserted into Shays-Meehan at the insistence of the Congressional Black Caucus would allow members of Congress and their challengers to go to wealthy individuals and urge them to steer their money to various allied interest groups—in chunks of up to $20,000—for voter-registration and get-out-the-vote activities. Candidates could also solicit unlimited amounts in unrestricted, tax-deductible donations to such groups from corporations, unions, and individuals. And unlike soft-money gifts to political parties, which must be publicly disclosed, gifts to interest groups could remain anonymous.
McCain-Feingold-Shays-Meehan does seek to restrict these interest groups by severely limiting their ability to buy "issue ads"—or as reformers call them, "sham issue ads"—designed to help or hurt candidates. The bill would ban even mentioning a candidate's name in any broadcast ad within 30 days of a primary or 60 days of a general election. (There is an exception for ads paid for by regulated political action committees.) One side effect would be to tempt such groups to do more of their campaign-related advertising earlier, before the 60-day and 30-day provisions kick in. That's how the bill could make campaigns even longer than they are now.
But it is more likely, in the view of most experts, that the Supreme Court will strike down the issue-ad restrictions in whole or in part. If the Court does this while simultaneously upholding the ban on soft-money gifts to parties, the net effect would be less money for parties and more money and power for interest groups (not to mention the media). The decisions would also mean more negative attack ads—a specialty of independent interest groups.
Another likely effect of such a Supreme Court decision might be to spawn a proliferation of new, ostensibly independent surrogates for the political parties. Run by campaign consultants, these groups could raise and spend unlimited amounts of money from unidentified corporations, unions, and individuals to help the candidates they favor. (The consultants could also pay themselves very handsomely.) Still another effect would be to increase the influence of lobbyists who are practiced in the art of raising lots of hard money by soliciting and bundling $2,000 contributions from many individual donors.
And should the Court strike down not only the issue-ad restrictions but also the soft-money ban—which critics say discriminates unconstitutionally against the political parties—little would be left except the doubling (at least) of the maximum hard-money contribution. Republicans would be ecstatic. Reformers would see their legislative triumph morph into disaster.
That particular outcome seems unlikely. But this bill—which is 14 pages of fine print that amends existing statutes and is inscrutable even to most lawyers—is so complex, and so vulnerable to attack in the courts, that nobody can safely predict how much will survive judicial review, let alone foresee all the long-range effects. Some Republican experts fear the bill will hurt Republicans (excepting President Bush, whose prowess at raising hard money will give him a huge financial advantage in 2004). Some Democratic experts fear it will hurt their side. They can't both be right. But a lot of folks who are unhappy with the current system could end up unpleasantly surprised by the unadvertised effects of reform.