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With the McCain-Feingold campaign finance reform bill finally up for debate in the Senate next week, the nation's attention has turned once more to soft money. Like any salient Washington "hot topic," the question of who can donate how much to political campaigns is busy making the Sunday morning talk-show rounds, where the pundits explain the basics: that "soft money" consists of unregulated donations to political parties, funds that individuals and organizations can contribute in unlimited amounts to the party of their choice, provided that the party does not then earmark that money to promote specific candidates. Undoubtedly, the word "loophole" will be tossed around, and you will learn that soft money (called "the sort of thing only a lawyer could love" by the Economist) is the only way to circumvent current campaign donation laws.
But above the white noise generated by the spin doctors has arisen a particularly interesting twist on the same old debate: the question of whether placing restrictions on soft money in some way restricts our fundamental right to freedom of expression. In other words, is using cold hard cash to "voice" our political preferences tantamount to speaking at a rally on a party's behalf? And if so, should this form of expression be protected under the aegis of free speech?
At vanguard of this conceptualization of soft money is the American Civil Liberties Union (ACLU). Two years ago, the ACLU opposed a forerunner of the McCain-Feingold bill on the grounds that banning soft money would "chill free expression." These same dire warnings were echoed in a New York Times op-ed piece last week where the authors (one of whom is general counsel for the New York Civil Liberties Union) sought to prove that banning soft money is tantamount to "prohibit[ing] speech."
Are such contentions valid? In this age of unprecedented economic success the idea that money talks is both an attractive prospect (for those looking to get it) and a foregone conclusion (for those who have it already). But is it really a system of values which we would like to apply indiscriminately in the political arena?
The answer is no. One of the free speech advocates' greatest weaknesses is the way in which a vague notion of the right of individuals to spend money as they please supercedes the ways in which soft money corrupts to the political system. The authors of the New York Times piece went so far as to state that "common sense" dictates we should not be "afraid that contributors to political parties might have some undue influence over the candidates."
This sort of reasoning amounts to nothing more than calculated naivete. To imply that companies and individuals would donate hundreds of millions of dollars to political parties solely to assist those parties in executing "get-the-vote-out" programs and grassroots efforts falls somewhere along the spectrum that runs from dubious to ludicrous. There can be no question that those donors who contribute large amounts of soft money have the expectation--stated or implied--that they will receive some sort of "legislative return" for their financial support.
This aside, the attempt to insist that the process of donating soft money is tantamount to a forum where free speech can be exercised is to ignore the gross inequalities that exist within the system. Statistical data indicates both that a powerful elite controls the majority of soft money donations, and that soft money as a percentage of the total amount of money spent on campaigns has dramatically increased over the last decade.
According to a study by the nonpartisan Center for Responsive Politics, two-thirds of all soft money contributed to the 2000 presidential campaigns (about $296 million) came from a tiny group of only 800 donors. And the Economist last week reported that the amount of soft money in presidential campaigns has risen from $90 million (or 17 percent of the total money spent on such campaigns) in 1992 to nearly $500 million (or 41 percent) in 2000. These numbers clearly indicate that the soft money guidelines hinder the ability of those who cannot contribute large sums of money to have their voices heard; in other words, this forum for free speech which soft money supposedly creates is open only to those who can afford the entrance fee. Can we really call a construct of laws which virtually hands 800 people potential veto power over the wishes of a country of 300 million--in the presidential election, no less--a fair exercise of free speech?
Where concerns about restrictions on freedom of speech are most legitimate are in the content of laws which are necessary to support a closure of the soft money loophole. To be effective, the government cannot simply restrict the amount of soft money which can be donated; it also must ensure that organizations do not turn around and "execute" soft money spending on their own. The McCain-Feingold bill would solve this problem by banning the private purchase of radio or television commercials if those spots specifically endorse a candidate by name in the two months before a general election.
This, the ACLU states, constitutes an explicit restriction placed on speech. Here, finally, is an argument that makes sense: it is not the government's place to curtail independent political advocacy. Unfortunately, a better way to solve the problem of soft money has yet to present itself, and the power of those funds is too damaging to our political system to ignore. Chilling effects on the free expenditure of money or no, the McCain-Feingold must be passed. Let the free speech advocates battle those specific provisions out in the courts: in the meantime, the bill can serve to stem the flow of soft money until a better solution (and one that does not interfere with individual advocacy) can be drawn up.
Alixandra E. Smith '02 is a government concentrator in Kirkland House. Her column appears on alternate Mondays.
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