Three Judges, Four Opinions, 1,638 Pages, and One Good Idea

The judges' ruling on soft money might curb influence-peddling without harming the two parties

"Last year when I ran for the Senate ... I locked myself in a room with an aide, a telephone, and a list of potential contributors. The aide would get the 'mark' on the phone, then hand me a card with the spouse's name, the contributor's main interest, and a reminder to 'appear chatty.' I'd remind the agribusinessman that I was on the Agriculture Committee; I'd remind the banker I was on the Banking Committee. And then I'd make a plaintive plea for soft money—that armpit of today's fundraising.... I always left that room feeling like a cheap prostitute who'd had a busy day."

That's how the soft-money shakedown works, as described by Sen. Zell Miller, D-Ga., in a February 25, 2001, Washington Post op-ed. Its resemblance to prostitution, or perhaps extortion, generated much of the revulsion that propelled the McCain-Feingold campaign finance reform bill into the statute books last year.

Now comes a special federal court to carve up with a First Amendment buzz saw what Congress wrought. Not a pretty sight. The three judges agreed on so little that it took four separate opinions and 1,638 pages for them to explain themselves, complete with footnotes squabbling about why it took them so long. Learned debates are pinging around the Internet about the many ambiguities and oddities in their May 2 decision.

Meanwhile, even before the decision was released, top congressional Democrats had been planning what The Washington Post calls "a roundabout way ... to finance their 2004 congressional campaigns with the very type of unlimited donations from corporations, unions, and individuals that [they] had vowed to flush from the political system." Their gimmick is to create two new groups that are "unmistakably aligned with the Democratic Party's long-standing campaign organizations for the House and Senate," but are "technically ... not arms of the Democratic Party." Will the Republican loophole-drillers be far behind?

All this might make a body wonder how much sense it makes to be regulating the riotous marketplace in political speech at all. This question transcends the widespread panning of the three judges for their verbosity; for putting on a warm-up act so protracted as to leave the Supreme Court little time to clear up the confusion before the 2004 campaign is well under way; and for upholding (by 2-1) a restriction on "issue advertising" by independent groups so oppressively broad and vague that even many campaign reformers doubt its constitutionality.

But the special court—Appellate Judge Karen LeCraft Henderson and District Judges Colleen Kollar—Kotelly and Richard J. Leon, all of Washington—may have gotten one thing right: They split the soft-money baby in a way that might just cut down the crass influence-peddling that Zell Miller described, while allowing some uses of soft money, without which the political parties could be gravely weakened.

Some background: The Supreme Court, in its landmark 1976 decision in Buckley v. Valeo, struck down in part and upheld in part the sweeping, post-Watergate campaign finance rules that Congress had adopted in 1974. The justices upheld most caps on individual and other contributions to federal candidates, because huge contributions can foster corruption or its appearance. They struck down most caps on campaign spending, because spending caps would do little to combat corruption and would severely restrict candidates' (and others') First Amendment rights to present their political views to the public. The Court also ruled that individuals and nonprofit advocacy groups such as the Sierra Club and abortion-rights activists can spend unlimited amounts to support or attack federal candidates so as long as they stop short of explicitly saying "elect Smith," "vote against Jones," or the like.

What emerged was a patchwork that, by some accounts, worked tolerably well at first but has become so riddled with loopholes over the years as to allow rampant influence-peddling. The biggest loophole was for "soft money," which means all political money excepting federally regulated campaign contributions and spending ("hard money"), and which includes huge contributions to political parties by corporations, labor unions, and wealthy individuals.

Initially, this soft money went to uncontroversial voter-registration and other "party-building" activities that provided only indirect benefits to the parties' federal candidates. But the ingenuity of campaign finance lawyers, the unquenchable thirst for money to buy campaign ads, and the paralysis of the Federal Election Commission changed that. By 1996, both parties were routinely spending millions in soft money to buy what reformers call "sham issue ads" to elect their federal candidates. And candidates from President Clinton on down were personally soliciting corporations, unions, and wealthy individuals for contributions ranging well over $100,000. Technically, these contributions went to the parties, not the candidates. But this became little more than an accounting gimmick. In reality, soft money eviscerated both the 1974 law's caps on hard-money contributions to candidates and the pre-existing ban on campaign contributions by corporations and unions.

Meanwhile, independent advocacy groups were becoming major players in federal elections by raising and spending larger and larger amounts on "issue ads" that mixed advocacy of legislative agendas with attacks on (or praise of) federal candidates. Such "negative attack ads" can be devastatingly effective. But they turn off voters and enrage the targeted candidates, including many incumbents.

A diverse coalition pushed through McCain-Feingold: people disgusted by the soft-money shakedown; incumbents seeking to muzzle attack ads; egalitarian reformers seeking to curb spending by monied interests to influence public opinion (as well as to influence candidates); and journalists and others eager to regulate the whole stinking mess and impatient with warnings that many of the proposed cures might be worse than the disease.

The result: McCain-Feingold's central provisions sought to bar all raising and spending of soft money by political parties, even for party-building activities, and to curb severely the freedom of independent groups to buy broadcast ads supporting or attacking federal candidates.

The speculation of many experts has been that the Supreme Court is likely to uphold the soft-money ban but strike down some or all of the restrictions on independent groups, the most sweeping of which amount to a frontal assault on the groups' First Amendment rights. If that is what the Court does, it might have the perverse effect of artificially shifting political money—and thus power—from the parties, which are broad-based coalitions with some accountability to the general public for their campaign activities, to independent groups, many of which are dominated by hard-line conservatives and liberal ideologues.

The justices might do better on soft money by approximating what the three-judge panel did. All three (in a rare moment of unanimity) upheld a provision barring federal candidates and officeholders from receiving, transferring, or spending soft money in connection with any election; Judges Kollar-Kotelly and Henderson upheld a provision banning federal candidates and officeholders from soliciting soft money for their national parties; and Judges Leon and Kollar-Kotelly upheld a ban on using party soft money directly to promote federal candidates, because of "the risk of corruption [when] a donor's contribution to a party is used thereafter to directly benefit a candidate's campaign."

But Leon joined Henderson in ruling that national political parties have a right to raise and use soft money for such purposes as contributing to state and local candidates and financing "generic voter-mobilization efforts," because they benefit federal candidates only indirectly and thus pose little risk of corruption.

Perhaps these shifting majorities drew too many confusing fine lines. But the panel's overall approach—upholding the ban on the getting and spending of soft money by or for federal candidates while allowing the parties to raise and spend it for other purposes—has the virtue of outlawing activities that smack of influence-peddling without unduly shifting money and power from the political parties to independent interest groups. While reformers warn that allowing any form of soft money risks circumvention and abuse, this risk seems too speculative to justify the harsh impact that a complete soft-money ban would have on the parties' First Amendment rights.

On the other hand, the Supreme Court should strike down the McCain-Feingold effort to muzzle independent groups, the thrust of which Kollar-Kotelly and Leon surprisingly upheld over Henderson's dissent. And in any event, the nine justices on the high court should avoid any temptation to match the three judges in per capita prolixity. A dozen opinions totaling 4,914 pages would be a bit over the top.