Campaign Finance Law A 'Baby Step'
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Give them credit for candor, at least. Even as the Supreme Court upheld most of the latest campaign finance reform statute, the Justices conceded that their massive 300-page ruling, and the well-meaning law, the so-called McCain-Feingold effort, won't truly protect politics from the corrupting influence of money.
"We are under no illusion that (the law) will be the last congressional statement on the matter," wrote Justices Sandra Day O'Connor and John Paul Stevens in what surely has to be the understatement of the term. "Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day."
In other words, Justices O'Connor and Stevens want us to know that Congress will continue to try to tinker around the edges of the problem while the Court continues to balance the right to give money to political causes and candidates -- a recognized form of "free expression" under the first amendment -- with the right to have a true and corruption-reduced representative government. — And the Justices also want us to know that they aren't optimistic that there will be a real solution anytime soon.
For now, however, the Court's majority was content with affirming the legislative ban on "soft money" -- the heretofore unlimited reservoir of funds that have been funneled for years toward political parties.
Federal office-holders and candidates cannot raise soft money and political parties cannot receive it. The Court also wisely upheld Congress' restrictions on those often heinous "issue" ads that run on the eve of elections.
Two less significant provisions of the Bipartisan Campaign Reform Act were rejected by the Court.
In theory anyway, the ruling is a victory for pro-reform forces; a defeat for the status quo.
But if the Court's tome-like declaration is a good-faith step toward a more noble brand of politics, it also is a symbol of how feeble is the government's response to the spiraling, almost sickening influence of campaign contributions. Even though the new law has been in effect pending appeal, President Bush already has broken fundraising records as he goes from rubber-chicken dinner to rubber-chicken dinner in a time of war. And even though the new law seeks to diminish the influence of money on politics, new partisan interest groups on the right and left already have sprouted up to do, essentially, what soft money used to do.
It seems there will be money in politics so long as politicians need campaigns and campaigns need money and individuals and corporations need politicians to do their bidding. The ruling certainly won't satisfy those who believe that the right to donate money (and the right to receive it) is a free speech bedrock right that Congress has no business regulating. Nor will the ruling likely satisfy those who want more money out of politics.
That's why both the back-slapping and hand-wringing on Capital Hill Wednesday seemed so misplaced. I mean, what in the world was Rep. Christopher Shays, R-Conn. thinking when he said the Court's ruling is a "grand slam"?
And, for that matter, what in the world was Mark Pence, R-Ind. thinking when he called today a "dark day in the history of liberty"? The decision is neither. It doesn't stop the flow of money into politics, as Justices O'Connor and Stevens noted, it merely redirects it into another channel. This is not a landmark ruling. And McCain-Feingold isn't a landmark law. It's a baby step, the direction of which depends entirely upon your political and legal view.
What the decision does, indisputably, is create certainty for the 2004 election cycle. Until today, the new rules were in effect but under a cloud. Now that cloud has been lifted. We now know that the new rules will be in effect for the forseeable future, mostly because the next generation of loopholes in the law probably won't come to light-- or at least be challenged in court-- until the 2006 election cycle. By then, of course, the Supreme Court and Congress both may have a different makeup.
Not that it will matter. As long as the Court considers money to be a form of constitutionally protected speech, and as long as the politicians who enact the laws are beholden to the very donors the influence of which genuine campaign finance reform would harness, money will continue to infect politics in ways large and small. You don't need a 300-page missive from the Supreme Court, candor and all, to tell you that.
By Andrew Cohen