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Jewish World Review June 27, 2001 / 6 Tamuz, 5761

Jules Witcover

Jules Witcover
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Consumer Reports

Spinning Campaign Finance Reform's latest 'headway'

http://www.jewishworldreview.com -- THE Supreme Court's 5-4 decision limiting how much political parties can give directly to candidates' campaigns isn't quite a green light for the banning of soft money as proposed in the McCain-Feingold campaign finance bill, but at least it's not a red light. That should help achieve passage when the bill, already cleared by the Senate, comes up in the House shortly.

The ruling doesn't deal directly with soft (unregulated) money, but it does reaffirm the basic notion that large amounts of money can be a corrupting influence in the election process and hence can constitutionally be limited. Foes like Justice Clarence Thomas, who wrote the dissenting opinion, argue that any limits violate the constitutional guarantee of free speech.

Opponents of McCain-Feingold hope to clutter the House version with sufficient amendments unacceptable to Democrats to kill it in conference with the Senate. The ruling in this case should provide some backbone to wavering legislators in the House and undercut the contention of the bill's chief critic, Sen. Mitch McConnell, that even if McCain-Feingold is enacted it won't pass constitutional muster before the Supreme Court.

This week's Court decision was based on an end run the Republican Party in Colorado made on direct campaign contribution limits by running radio ads against the Democratic candidate in a 1986 U.S. Senate race. Lower courts said it was OK, putting in jeopardy the whole idea that limits could be effectively maintained for the purpose of combating corrupting influence in politics.

At the heart of the dispute is another Supreme Court ruling of 25 years ago in the case of Buckley vs. Valeo, which equated campaign expenditures with the constitutional exercise of free expression. It said such expenditures could not be limited if they were made independent of any coordination with a campaign.

In the Colorado case, the state GOP said there was no coordination, but even if there was, any limits placed violated the free speech constitutional guarantee. The Supreme Court has now rejected that argument, a key to sustaining the legal basis of McCain-Feingold.

In any case, the whole business of independent expenditures in campaigns is, more often than not, an invitation to circumvention. Any individual, party or other special interest can use the independent expenditure loophole simply by not directly colluding or consulting with the campaign or candidate it wants to aid, but by observing what campaign need is going unmet, and meeting it.

For example, if a candidate or campaign doesn't have enough money to run radio or television ads, or chooses to spend its money on some other campaign activity, those individuals or groups wanting to help don't need to be geniuses to recognize the gap in the campaign plan and fill it with their own money. The campaign manager doesn't have to call up the willing contributor and ask him or her to buy ads backing his candidate or attacking his opponent. "Coordination" thus can become a joke - a wink and a nod to qualify as an independent expenditure.

Buckley vs. Valeo, because it ruled that contributions could be limited as a potential corrupting influence but that expenditures could not be capped, has come under attack from both sides of the argument over what constitutes free speech. Republicans largely say all contributions should have free-speech protection just as much as expenditures have. Democrats mostly argue that neither contributions nor expenditures should be regarded as the exercise of free speech, especially because such construction favors the rich in political influence, and hence both should be subject to limits.

Thomas was joined by three other conservative justices in equating money and free speech and questioning whether either giving or spending can be constitutionally limited. The five other justices, led by Justice David Souter, thus held the line for the time being for the argument that the potential of corruption in campaign giving justifies putting a cap on it.

But many liberal legal scholars and other academics, mobilized by the Brennan Center for Justice in New York, continue to plan a direct challenge to the Buckley decision's differentiation between giving and spending. Money should not be equated with free speech in either case, they argue, but should be treated for what it is - the means to buy access and influence at the expense of citizens who don't have it.


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