Keeping status quo on campaign finance

Posted: Wednesday, June 27, 2001

It's understandable why friends of campaign finance reform expressed delight at this week's Supreme Court decision on the subject, narrow in scope as it was.

For the reformers, the 5-4 ruling in a rather arcane Colorado case was a public relations coup or, at least, a bullet dodged.

And the timing could not have been better.

The court's action, in endorsing a set of campaign spending limits, served to remind the nation that it's been three months since the Senate approved the much-heralded McCain-Feingold bill - and the House has yet to take it up.

Had the court come down on the anti-limits side, foes of reform in the House would have cited the ruling as constitutional justification for killing off the bill and its ban on the vast "soft money" contributions which fuel the political process.

Now the legislation, known in the House as Shays-Meehan, is certain to have its moment, most likely in the coming month. Whether the Supreme Court will ever get the opportunity to review it is another question. For that to happen, a bill has to emerge from the House, survive a conference, and obtain a presidential signature, none of which is guaranteed.

Whatever transpires in the weeks ahead, it's fair to say that the decision handed down Monday didn't create a new world order in campaign finance law. Rather, it reinforced a status quo that is promising for the reformers in some regards, daunting in others.

The status quo has its roots in a 1976 case known as Buckley v. Valeo, in which the court took the view that regulating political contributions is one thing, regulating expenditures quite another.

What the court said then, and has said ever since, is that government has a legitimate interest in curbing donations, because that relates to concern about possible corruption of officeholders. But the spending of money on political activity - by whoever has it - is the functional equivalent of speech, and thus protected by the First Amendment.

Justice David Souter, writing for the majority in the Colorado case, repeatedly gave his blessing to this distinction. The only issue before the court, he said, was whether a certain form of spending by parties, if not limited, would provide a loophole through which donors could bypass legitimate restrictions on contributions to candidates. Souter found that it would.

Hence, limits were permissible.

Reformers say that the same logic provides the perfect constitutional argument in favor of the McCain-Feingold ban on soft money donations to political parties. Soft money is a way around the rules on giving to candidates. So the justices should have no problem banning it.

Whether they will is another question. This week's five-member majority includes Sandra Day O'Connor and her unpredictable, every-case-is-different approach.

Besides, the Colorado opinion bodes ill for another key element of McCain-Feingold, the one limiting the ability of labor unions, corporations and interest groups to run issue ads about candidates. You can't read Souter's opinion, which refers repeatedly to the sanctity of "independent" expenditures, without thinking that provision is dead on arrival.

Another fascinating element of the case is the dissent, the work of Clarence Thomas. For years, many liberal advocates of reform have called for the reversal of Buckley v. Valeo on the grounds that it gives political money far too much deference - by equating it to political speech. On this occasion, Thomas, a conservative, called for reversing Buckley on the ground that the decision doesn't give money deference enough.

With the backing of Antonin Scalia and Anthony Kennedy, Thomas declared: "I remain baffled that this Court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and association rights that the Founders sought to defend."

If he can get two more votes for his position, he may be able to wipe out the entire body of campaign finance law. Those votes don't exist at the moment, but give the president a vacancy or two to fill and you never know.

Larry Eichel is a columnist for the Philadelphia Inquirer. (c) 2001, The Philadelphia Inquirer. Distributed by Knight Ridder/Tribune.

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