Campaign Finance Justice

In the movie Amadeus, composer Antonio Salieri was profoundly jealous of Wolfgang Amadeus Mozart’s innate musical gifts. Not only was Mozart a vastly more talented composer, but his compositions flowed from his pen with apparent ease, as if he were merely transcribing the notes from angels. Mozart could carouse and give himself to debauchery, yet still easily produce heavenly compositions. While Salieri led a pious, contemplative life and diligently labored at his craft, he produced far more pedestrian pieces of music. God’s apparent injustice gnawed at Salieri and ultimately destroyed him. Salieri could never accept that it is often too much to expect justice in this world. Nonetheless, there are precious occasions when we may enjoy the prospect that someone or some group receives their proper comeuppance. Campaign finance reform may yet represent this proper reward for Democrats.

The problem fundamentally lies with the mythology of Democrats, that they are the party of the little guy while vile Republicans represent the upper class interests. This mythology causes them to pursue policies even against their own best interests. The only way Democrats can reconcile the success of Republicans at the polls is to argue that Republicans buy elections with resources provided by moneyed interests. The inevitable logic of this tenet of their faith is that if campaign contributions are limited or even eliminated, electoral success for Democrats would follow.

The first efforts at campaign finance reform could only be made to jive with that pesky First Amendment if it could be argued that campaign finance laws help avoid the appearance of corruption. Hence, money donated directly to a candidate’s campaign could be regulated, but people and institutions would retain the freedom to advocate their positions, independent of the campaigns. Money could only be donated to campaigns in modest increments of $1,000 per donor per election. However, independent organizations could raise amounts from people, corporations, unions, or other interest groups in any amount. Money raised directly for a candidate is called “hard money.” Money contributed to other interest groups has come to be called “soft money.”

Unfortunately for Democrats, Republicans turned out to be much more proficient at raising lots of money from modestly affluent donors, particularly small business people, in increments of $1,000. Democrats, however, had to rely on limousine liberals willing to donate money in far larger chunks. Democrats extricated themselves from this dilemma by campaign finance alchemy, in effect, turning soft money into hard money.

It turned out, the money given to political parties could be considered soft, if it were used for general party building and issue advocacy and not “expressed advocacy” for the election or defeat of any particular candidate. The limit of any contribution to a political party was $20,000 per year. Under President Bill Clinton, Democrats masterfully exploited this loophole and Republicans soon followed. Using soft money, one could argue that Candidate A’s position on public policy was wise and prudent, but one could not expressly advocate for the election of Candidate A with words to the effect, “Vote for A.” However, the cumulative effect of such ads are much the same as expressed advocacy ads.

In addition, issue ads which were not directly tied to a candidate and funded by an organization independent of a political party or candidate could not be regulated. Pro-life and pro-choice groups, for example, could run ads critical of certain positions without limit. The expenditures of closely allied groups could help a campaign as long as there was no provable collusion between a campaign and independent groups. However, for many independent interest groups it is pretty easy to divine the campaign themes of their favorite candidates and run political ads accordingly.

Both political parties used soft money funneled both through political parties and other groups as a means to fund campaigns. As long as political ads did not expressly advocate the election or defeat of a candidate, there was no violation of the law.

Again responding to the mythology that further limiting free speech exercised through the medium of campaign financing would create pristine politics, Congress passed the McCain-Feingold bill. Despite Senator John McCain’s (R) joint sponsorship of the bill, it was largely a Democratic bill. This new law prevented the political parties from acting as conduits for soft money in the same way as before. Political parties could still help out with generic “Vote Democratic” or “Vote Republican” ads, but the money for these activities must come from contributions that are limited to $5,000 increments. Larger donations for general party activities were capped at $25,000. Moreover, within the last 60 days before an election, issue ads (ads that do not expressly advocate the election or rejection of a candidate) are limited. To the benefit of Republicans, the individual contribution limit to candidates was doubled from $1,000 per donor per election to $2,000.

Some of McCain-Feingold, particularly the one limiting independent expenditures in the last 60 days before the election, were challenged in court. In yet another erosion of the First Amendment, the US Supreme Court ruled that the restrictions on third-party expenditures within 60 days of an election were constitutional. Indeed, the ruling was so broad that it blurred the distinction between the actions and contributions permitted of political parties and those permitted of independent groups.

What are Democrats to do now? They appear to be at a permanent disadvantage in raising hard money. They do, however, have extremely wealthy allies like George Soros who donates money in units of wheelbarrows and who has publicly stated that he will spare no expense to defeat President Bush in the November election. The solution Democrats and the Left have conjured up is to create independent organizations that will advocate Democratic themes on state and local levels. By careful coordination these themes will benefit Democratic candidates at the federal level and contribute to organizational efforts and get-out-the-vote activities that will benefit federal Democratic candidates as well. The idea was so good that Soros immediately pledged $10,000,000 to America Coming Together (ACT), one of the umbrella independent organizations set up by the Left.

The Republicans responded by establishing Americans for a Better Country (ABC). The goal of ABC was a clever and cynical attempt to derail the entire Democratic soft money effort. The crucial point to recognize is that the activities that these independent organizations are performing are close to the activities of traditional political parties. They can, in effect, become shadow political parties. Should these independent organizations not be limited to raising money in small increments like political parties?

ABC claims they intend to engage in activities similar to ACT. They then asked the Federal Election Commission for a pre-emptory advisory ruling about any fund-raising restrictions. On February 17, the Federal Election Commission ruled that:

  • If you support or attack any candidate, even if there is no expressed call for election or defeat, the funds for such ads can only come from hard money funds.
  • Generic pro- or anti-Republican and Democratic ads must be funded at least in half by accounts subject to hard money limits.
  • Get out the vote campaigns must also come from hard money accounts.
  • The money for any federal election activities must come from hard money accounts.

In other words, a large fraction of the money donated by Soros and other well-healed Lefties cannot be used to go after Bush, even in indirect ways.

Democrats have gotten what they wanted. They have limited speech through campaign finance reform and it has come back to hit them in the tail. Usually the Democrats could count on the fact that the FEC is usually slow to act against wayward activities. However, in this case the FEC has already issued a ruling. So the Left will have to resort to the old tactic of simply righteously ignoring the law. As reported by USA Today, Carl Pope, the Executive Director of the Sierra Club, has “suggested the Sierra Club would even consider ignoring any new FEC restrictions and proceeding with its activities as planned, letting the chips fall where they may.”

Tell, David, Who’s Afraid of George Soros, The Weekly Standard, March 9, 2004, 19-25

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