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On May 2, a special three-judge panel struck down several key provisions of the landmark Bipartisan Campaign Finance Reform Act. The act, popularly known as McCain-Feingold, closes loopholes in existing laws that allow wealthy special interest groups to spend unlimited sums of money on political candidates. McCain-Feingold is an important step towards a more democratic political process, where the overwhelming influence of special interest money is not allowed to drown out the voices of voters. The Supreme Court should overturn the panel’s wrongheaded ruling.
After Watergate, an America newly disillusioned with the federal government began to learn of the massive “influence peddling” going on in the halls of Congress and the White House. Because political contributions were unlimited and unregulated, candidates tailored their policies towards those who could write large checks. In a political system where the better-funded candidate wins more than 90 percent of the time, politicians need money to survive, and only wealthy special interests can provide the tremendous sums necessary to run a winning campaign. In the 1970s, Congress passed a series of amendments to the dangerously weak Federal Election Campaign Act in an attempt to end influence peddling and put power back in the hands of voters.
But loopholes in these amendments allowed corporations, labor unions and Political Action Committees to set the agenda in Washington by continuing to fund candidates who supported their views. And since campaigns have grown more expensive over the years, candidates are more dependent than ever on large donations. Those who oppose wealthy special interests can find themselves unable to run a viable campaign, and voters are denied a meaningful choice at the ballot box. McCain-Feingold attempted to address the problem, but the panel’s ruling will preserve the dangerous status quo.
The panel’s 1,600-page ruling raised a number of technical issues with McCain-Feingold, but the ruling comes down to one simple statement: the right of the wealthy to pour money into the political system outweighs the right of American voters to have their voices heard. While voters ultimately decide elections, advertising and mobilizing dollars have a profound power at turning voters and getting them to the polls. Consequently, money talks, and politicians will often turn around to listen.
The three-judge panel struck down two crucial clauses. First, they ruled that the prohibition on unlimited donations to political parties, known as soft money, violated the First Amendment. The provision would have allowed for some “party building” activities while ensuring that soft money does not remain a back door method for the indirect funding of candidates. Soft money donations began in the 1970s as a way for parties to finance encouraging participation in the political process. But parties now spend the cash largely on attack ads that increase voter cynicism and provide little useful information about candidates. Even worse, many large donors such as Phillip Morris and Dow Chemical give to both political parties, a practice that looks more like out-and-out bribery than a principled political statement.
The panel’s decision to reject needed limits on political spending goes against judicial precedent and common sense. The First Amendment was drafted to protect the right of the powerless to say things that the powerful didn’t want to hear. It would be a cruel irony if the amendment were now used to protect the power of the wealthy against the vast majority of Americans who can’t afford to “speak” through seven-figure checks.
The panel also rejected a provision of McCain-Feingold that would ban corporations and labor unions from running ads explicitly referring to political candidates immediately before an election. This clause is meant to ensure that non-voting entities like corporations are not able buy political influence by essentially paying for a candidate’s ads. The prohibition will also cut down on attack ads, which are often funded by independent groups like corporations or unions. At the same time, the provision leaves anybody free to run truly issue-based ads at any time. A return to truly issue-based ads can only elevate the level of debate while ensuring that individuals, not corporate interests, are funding campaigns.
The Supreme Court has consistently upheld reasonable limits on political spending. McCain-Feingold does nothing more than ensure that those limits are not made meaningless by legislative loopholes and crafty campaign lawyers. The High Court—which has the final say on reform—should recognize the rights of American voters over the rights of wealthy special interests. A ruling in favor of McCain-Feingold would reassert the principles of American democracy and score a victory for voters.
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