Jewish World Review Feb. 5, 2002 /23 Shevat, 5762

John Ziegler

John Ziegler
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Ban sticks, not flags


http://www.NewsAndOpinion.com -- THE first fallout of the Enron debacle has been the reinvigoration of the forces in favor of major campaign finance reform. To anyone paying attention, a discussion of how to fix our electoral system is clearly necessary. There is no question that the machinery of our political process is great need of radical reconstruction.

The news media has framed this debate largely along the lines of those who favor "reform" against those who want to protect the currently corrupted system. As is usually the case, the reality is not nearly that simple.

The undeniable truth of this issue (which almost no one seems to want to admit) is that it is absolutely impossible to restrict political donations in a meaningful way without trampling on First Amendment rights. This is largely due to the landmark case, Buckley v. Valeo, in which the Supreme Court held that money equals speech.

Forgetting for a moment that this ruling also seemingly contradicted itself by upholding restrictions on some forms of campaign contributions, the Bill of Rights has created quite a quandary for those searching for a way to remove the corrosive stain of monetary influence on our political process.

This seemingly irreconcilable conflict reminds me of a "no-win" situation the University of Mississippi faced a few years ago. Embarrassed by the tradition of its fans waving Confederate flags at its football games (why a school nicknamed the "Rebels" should be uncomfortable with such activity is a whole other story), but afraid of directly prohibiting the use of the flag, the university came up with a brilliant solution. Instead of restricting the flags, they simply banned sticks.

In other words, instead of limiting the exercise of their fan's "speech," the authorities altered the climate of the stadium by making it inconvenient to wave the troubling flag. Without the sticks to hold them, the tradition of the flags quickly faded away.

Facing a similar situation, the supporters of campaign finance reform have elected to try banning the flags instead of simply shifting the incentives for behavior.

The most highly touted, as well as the worst offending, attempt in this realm is the Shays-Meehan bill, which just received enough signatures to force a vote in the House. The bill bans all "unregulated" (if it is truly "unregulated" then how come we know exactly who has given what to whom?) "soft" money and severely limits the ability of corporations and unions to influence elections with donations.

While the bill appears to be well intentioned, the results of it becoming law would likely be appallingly bad. The plan not only further complicates an already confusing set of campaign finance rules (we know from the tax code that that the more complex a law, the more loopholes there are), but has several provisions that are clearly violations of the constitutional right to free speech.

In fact, the authors of the bill are so afraid that a court will strike it down on these grounds that it includes a "non-severability" clause which would protect the entire bill from being thrown out should one element be found to not pass constitutional muster. In short, they are touting a proposal (with an amazing amount of help from the news media) that they suspect is at least partially unconstitutional!

In one of its more questionable tactics, Shays-Meehan attempts to curtail what its supporters call "Sham Issue Ads," which some groups have used as a way around current political giving restrictions. But isn't one person's "Sham Issue Ad" another's constitutionally protected right to have their voice heard in an election? As George Will stated in his eloquent speech that this past week's CPAC meeting in D.C., "how would the New York Times respond if someone suggested that they be limited in the amount of money they could spend on their political commentary?"

The most absurd and disturbing stipulation in Shays-Meehan is its lame effort to deal with wealthy candidates who use their own money to get elected. Such resources cannot be limited in any way and therefore would be of even greater importance should this bill become law.

In what would surely be known as the "Jon Corzine Rule," Senate candidates who use too much of their own money would see their opponents suddenly allowed to raise exponentially more than the legal limit of "hard" money on a dramatic graduated scale. While no one has more distaste for a candidate buying their seat in congress than I do, I am far more troubled by the prospect of someone being at a DISADVANTAGE in an election (and effectively having their free speech rights muted) because they are NOT beholden to campaign contributors.

Why not just alter the motivating forces instead? How about Senators serve one, eight-year term? Why not a two-term limit on Congressman and have them serve four-year terms? How about doubling the number of members of the House so that we don't have almost 650,000 citizens for every representative, campaigns are cheaper, and individuals don't have enough power for anyone to bother spending money to corrupt them?

This is clearly one of those situations in which there are no perfect answers, but the ones our elected officials have come up with so far will not only restrict one of our most precious rights, but will also be hopelessly ineffective.



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© 2002, John Ziegler