It has been five years since the signing of McCain-Feingold and we are nowhere closer to a purer politics. Why? Because squelching speech is never good for democracy.
The McCain-Feingold campaign finance era is the era of corruption; the era of Jack Abramoff, Bob Ney, and Randy “Duke” Cunningham. This would be unremarkable if we weren’t told again and again that McCain-Feingold would reduce governmental corruption. The Hsi Lai Temple foreign-fundraising scandal, the Marc Rich pardons, the Enron accounting scandals, all were reasons reformers said we must pass McCain-Feingold. But McCain-Feingold would do nothing to correct such scandals, just as it has done nothing to purify politics, reduce incumbency, shorten Presidential campaigns, drive money from politics, or make politics more accountable.
McCain-Feingold increased contribution limits to officeholders, and lifted contribution limits to incumbents facing challenge from Millionaires. It increased hard dollar limits to party committees while stripping the national party committees of sixty percent of their operating budgets and starved the state party committees of resources in even-numbered years. It eliminated funding sources for advertising that mentions candidates close to an election. It tightened the rules on coordinated communications, and forced candidates to disclaim their ads in a design to deter negativity.
Hardening incumbency. Contribution limits to candidates and incumbent-controlled Leadership PACs increased under McCain-Feingold. Incumbents, however, already enjoy a fundraising advantage over all challengers but one: the self-financing candidate. Though touted as a brake on corruption, McCain-Feingold lifts the most corruption-reducing aspect of campaign finance law at a time a reformer should say it is needed most. It lifts contribution limits to incumbents when an incumbent is most likely to compromise his integrity to a generous donor to stay in office. It protects incumbents at higher risk of "corruption" by punishing the candidate that eschews corrupting contacts by choosing to self-finance.
The party committees are the most moderating force in American politics, the force most likely to back well-rounded challengers. Power did switch in the House of Representatives in 2006, no thanks to McCain-Feingold. Indeed, McCain-Feingold mitigated a national upheaval over war and Republican corruption; an uprising quelled to the benefit of incumbents for want of resources. “From 1994 to 2002, the sum of soft money raised by the two parties doubled for each midterm election,” says the Cato Institute’s John Samples, “[h]ence … we can safely conclude the Democratic party would have [had] millions more to spend in 2006 absent McCain-Feingold.” As Rahm Emanuel, the architect of the Democratic victory put it, “More resources bring more seats into play.” Democratic pollster Stan Greenburg believes the Democrats left 10 to 20 seats on the table, and John Samples attributes that loss to McCain-Feingold.
Reducing accountability. By driving money from the national party committees, McCain-Feingold drove it to 527 organizations and 501(c)(4)s whose reporting is less extensive. 527 advertising was no less negative than that done by the party committees in previous cycles, and we would bet most Americans would say it was more negative.
The stand-by-your-ad disclaimers, designed to make candidates accountable, did little to further the illegitimate governmental goal of dissuading candidates from engaging in certain modes of argument, a.k.a. “negativity.”
Lengthening the campaign. While hard money limits to candidates have increased, so has the cost of campaigning. The 2008 Presidential campaign, already in full swing, will see more money spent and last as long as any other.
Strangling the grassroots. By prohibiting nonprofit corporations from using their funds to mention candidates close to an election, McCain-Feingold tramples the rights of citizens to petition their fellow citizens to petition their government. A citizenry that cannot tell its representatives how to act in Congress is not sovereign. The issue is now submitted to the Supreme Court, and awaits review.
Creating new targets; compliance as circumvention. But the reformers will not acknowledge that their law creates more “problems”, even as they’ve warned us that McCain-Feingold was only a “modest first step.” Every action taken by citizens to adjust to McCain-Feingold has been labeled a "circumvention" of McCain-Feingold by the reformers. We hear that 527s “circumvent the law,” even as no one heard of a 527 before McCain-Feingold’s soft money ban. 501(c)(4)s “circumvent the law” in similar fashion. Bundlers of hard dollar contributions, ever more precious post McCain-Feingold, “circumvent the law.” Leadership PACs, Internet ads, and most recently, the independent expenditure units of the six national party committees engaging in activity blessed by the Supreme Court in three Court opinions, and using post-McCain-Feingold hard money to do so, also “circumvent the law.”
McCain-Feingold is five. It was sold as a corruption cure-all, but hasn’t prevented any. McCain-Feingold’s supporters now offer multiple measures to prevent its “circumvention,” measures sold as corruption cure-alls, but they won’t prevent any.
What can be said of reformers whose marketing has nothing to do with its products, and whose products do not bring about the results advertised?
Politics is a game of winners and losers. It is a game of persuasion to determine who will wield force. McCain-Feingold, also, has picked winners and losers. It is a game of force to alter how the rest of us pick winners and losers.
If the stakes of McCain-Feingold are force and choosing those who would wield it, shouldn’t we be questioning the results, and the advertising?
