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McCain's motives are noble, but his bill would be a disaster for America

The great puritan is at it again. John McCain calls himself a crusader; he has the attitude to match. He wants nothing less than to purify the nation and drive out evil. The evil is money in politics, of course, and he will slay it with campaign-finance reform. His panacea is to ban the soft-money contributions that corporations, unions and others give to political parties for use in campaigns.

McCain's motives are admirable. It is his reason that is in question. The McCain-Feingold bill is based on a fundamental misconception: the notion that on every issue there is some abstract public interest--some objective, Platonic embodiment of the public good--and that this is thwarted by the influence of private interests. The premise is that private interests, pejoratively called "special interests," are bad. Are they? You might support the Sierra Club or the Arctic oil drillers. But can both be acting against the public interest? You might be for Sarah Brady or for the NRA. Do you believe both are subverting the public good?

The American political tradition does not believe in such abstractions. The American idea is that the public interest does not arise from the ether and alight upon the shoulder of some wise Senator pulling his chin. It is defined by the rough clash of voices and forces and, yes, interests. Contrary to McCain, these clashing interests are good. The American idea has never been to suppress them but to pit them against each other and allow them to proliferate. The more they proliferate, the more they check and balance each other. Coal fights natural gas. Napster fights the record industry. Nader fights everybody. No one interest becomes paramount.

McCain-Feingold would shackle private interests by severely restricting their ability to express themselves politically. There are few more important or more cherished ways for those outside the political system to express themselves than by contributing to a political party that reflects their views. McCain-Feingold seeks to stamp that out. What would the bill do if it became law? Abolish influence peddling? Hardly. It would simply shift influence away from the inarticulate groups that today must buy media time or support political parties to participate in politics, and radically increase the influence of those already at the crossroads of information--journalists, broadcasters, media owners and incumbent politicians.

One provision puts severe restrictions on the political ads that outside groups can run in the month or two before an election, precisely when political speech is most important. It is hard to think of a more frontal assault on the First Amendment. The First Amendment may not have been intended, as some believe, to protect only political speech, but protecting political speech was surely its fundamental intent--an intent grotesquely violated by restricting political advertising at the height of campaigns.

But that is just the intended consequence of this reform. Consider the unintended consequence. McCain fought mightily for "severability"--the guarantee that the bill would stand even if one provision or another is thrown out by the Supreme Court as unconstitutional. He won. But don't we already have a lamentable experience with severability? In 1976 the Supreme Court threw out one provision of the post-Watergate campaign reform. The court ruled that you can constitutionally restrict how much a candidate can raise but not how much he can spend. That created a gigantic loophole for the very rich. They don't care about restrictions on what they can raise because they don't raise. They have all the money they need. Result? The current epidemic of fat-cat rookies who rocket to the Senate by spending zillions of their own money.

Imagine what will happen to today's great campaign reform when, as is likely, the Supreme Court throws out the restrictions on issue ads by independent groups. Will the great interests--unions and corporations and others with means--which can no longer give to parties, withdraw from the political arena? Of course not. As surely as night follows day, they will end up funding thinly disguised independent groups running their own political ads before an election. There will thus be no diminution of money (or corruption) in politics. There will simply be far more chaos. Instead of the political parties running ads, McCain's nefarious private interests will be supporting a cacophony of independent ads. The result? Money and power will still talk, but the political parties--the great ideological unifiers in the country--will be greatly weakened. For this we will have raped the First Amendment?

Twenty years ago, Senator Howard Baker called the Reagan tax cut a riverboat gamble. But that gamble was only about money. This one is about freedom.



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Cover Date: April 9, 2001

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