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Jewish World Review March 5, 2001 / 10 Adar, 5761

George Will

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http://www.jewishworldreview.com -- DISQUIETING rumors persist that some of President Bush's advisers are eager to sign a campaign finance "reform" bill, or at least to avoid vetoing one. Bush should beware of what Edmund Burke called "the irresistible operation of feeble councils."

And he should be aware of the Colorado case argued before the Supreme Court last Wednesday. If the court affirms the judgment of two lower courts in that case, the McCain-Feingold bill is patently unconstitutional.

Although a plain statement of the salient fact seems preposterous, the unvarnished truth is that McCain-Feingold's premise is: There is something inherently corrupt about the relationship between political parties and their candidates. Thus the bill would ban "soft money" contributions to parties -- unregulated money that can be spent for party-building, voter turnout, issue advocacy and other purposes, but not to "directly influence" the election of candidates for federal offices.

Last week, a quarter of a century after the Buckley v. Valeo ruling, which struck down much of the 1974 campaign finance law, the court for the first time heard arguments about whether it is constitutional for the government to limit a party's direct expenditures -- "hard dollars" -- for its candidates. In Buckley, the court held that limits on political money -- contributions and expenditures -- implicate "the most fundamental First Amendment activities," and therefore government bears a heavy burden of demonstrating a compelling need to limit those activities. The only such justification the court considers sufficient is the need to prevent corruption or the appearance thereof.

Well. In 1986 the Colorado Republican Party ran ads criticizing a Democratic congressman who was considering running for the Senate. It did this before the Republican Senate candidate had been chosen. Nevertheless, the Federal Election Commission charged that this expenditure violated federal limits on party expenditures for candidates. Ten years later the U.S. Supreme Court ruled against the FEC, saying the ads were "independent expenditures" and thus not subject to the "hard dollar" limits.

The Supreme Court remanded the case for the lower courts to consider whether those "hard dollar" limits themselves are constitutional at all. In response, the district court and the 10th Circuit have both said they are not. Last Wednesday the FEC asked the Supreme Court to say they are. But how can it without saying, preposterously, that there is a substantial risk of parties corrupting their own candidates by supporting them ?

As the district court said on remand: "The FEC seeks to broaden the definition of corruption to the point that it intersects with the very framework of representative government."

The FEC is a bureaucracy. Bureaucracies have a metabolic urge to maximize their missions. The FEC's mission is to regulate political discourse. A president's primary mission, stated in his oath of office, is different -- to defend the Constitution. Bush understands the conflict between his duty and the FEC's urge.

Around 7 a.m., Jan. 23, 2000, the day before the Iowa caucuses, candidate Bush was in Des Moines preparing to appear on ABC's "This Week." One of those who was to question him (this columnist), not wanting to ambush him with unfamiliar material, and wanting from him a considered judgment, took the unusual step of telling Bush he would be asked if he agreed with a particular proposition from an opinion written by Justice Clarence Thomas. The proposition, given to Bush on a 3-by-5 card, was:

"There is no constitutionally significant distinction between campaign contributions and expenditures. Both forms of speech are central to the First Amendment."

Asked if he agreed that there is something "inherently hostile to the First Amendment" in limiting participation in politics by means of contributions by individuals (Bush favors banning "collective speech" by corporations, or by unions without members' prior written consent), he briskly replied: "I agree." And asked if he thinks a president has a duty to make an independent judgment about the constitutionality of bills and to veto those he considers unconstitutional, he replied: "I do."

This puts Bush on a collision course with much of the political class and most of the media. It may become the first disruption of his serene relations with them, but there eventually must be a first, and the stake -- the First Amendment -- is worth a fight.

Bush has served himself and the country well by his congeniality efforts, but he will serve neither by continuing them until it costs him respect. It will cost him that if he signs McCain-Feingold.

Genius, said Bismarck, involves knowing when to stop. He had in mind waging war, but the same is true of waging niceness.



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