McCain-Feingold: A Good Start

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By Trevor Potter
Friday, June 23, 2006

When the McCain-Feingold campaign finance legislation was being debated four years ago, Sen. Mitch McConnell (R-Ky.) told his colleagues that it would "eviscerate the national party committees" because of its ban on unlimited "soft money" donations.

The legislation passed, and in 2004, the parties raised more funds than ever before. In response, critics explained that it was a presidential election year, and an exceptionally motivating one at that; funds would surely dry up in 2006. Yet numbers recently released by the Federal Election Commission (FEC) show that the $555.2 million raised by both parties so far this cycle is ahead of 2004 totals by 5 percent.

Still, skeptics say: The legislation was supposed to put an end to corrupt money in politics, yet here we have a series of scandals unfolding on Capitol Hill like implausible B-movie scripts.

In response, I'd point out that McCain-Feingold -- or the Bipartisan Campaign Reform Act (BCRA), as the law is formally known -- didn't seek to remove money from politics. After all, we have no public funding for House and Senate candidates, and the presidential funding system is broken. Candidates and parties still need money to reach voters. The limited goal of the legislation was to remove the obvious corruption of six-figure individual contributions, and corporate and labor donations (increasingly solicited by elected federal officials) to national committee coffers. Sponsors argued that focusing on small individual contributions would force the parties back to the grass roots and away from White House soft-money "coffees."

And the law has been an undisputed success in combating the corruption of huge soft-money contributions and an apparent success in re-energizing grass-roots supporters. Individuals are now limited in what they can give party committees: $26,700 to a committee per year -- no small sum for most Americans, but still far short of the hundreds of thousands and occasional millions wealthy individuals contributed to party committees in pre-BCRA years. Corporate and union contributions to national committees are banned. Not only are these individuals and entities not buying influence with their huge contributions, congressional and executive branch officials are not soliciting such contributions from regulated entities at the same time that legislation or contracts of direct interest to those entities are before a Cabinet officer or committee chair.

As for reinvigoration of the grass roots: There is every evidence that both parties in 2004 sought (and got) greater individual involvement from volunteers and contributors than in previous years. The media have extensively covered the new emphasis on the "ground game" in key states. Both parties report millions of new donors -- many acting through the Internet. Some argue that this isn't the doing of the BCRA, since party committees would have increased their Internet activities with or without the new law. Perhaps. But incentives usually matter, and if it is comparatively easy to raise money one way (by telephoning a handful of soft-money donors) and more difficult to do it another (by investing money to build a better Internet fundraising structure), the easy way usually wins out.

But why do we still have cases such as those of Jack Abramoff and Randy Cunningham, and serious allegations being made in the media against Reps. William Jefferson (D-La.) and Bob Ney (R-Ohio)?

Unfortunately, in four short years, people have forgotten just how bad the soft-money system was. Nowadays we are usually talking about small contributions ($5,000 by a PAC, or $2,100 by an individual) -- not six- and seven-figure numbers. Go back and read the court record in Sen. McConnell's failed Supreme Court challenge to the BCRA to see how much larger and more blatant some of the corruption was.

The BCRA was never expected to solve every problem. Its sponsors explicitly said that there was no silver bullet, that the law was only a start -- necessarily limited to the worst abuses in the system. The Supreme Court majority in the McConnell challenge also recognized this when it noted, "Money, like water, will always find an outlet."

In any system of government, there will be instances of bribery, even when it is clearly outlawed. Such acts must be vigorously investigated, prosecuted and punished. The system can also be reformed -- as proposals to limit earmarks, provide greater transparency in the legislative process and establish an ethics regulation process with teeth all seek to do.

There will always be efforts to circumvent new laws, as we saw in the most recent election cycle with the creation of some "527" groups, ostensibly independent of the national political parties but closely linked to them in personnel, donors and election goals. When the BCRA was passed, there was an obvious risk that national parties and their supporters would try to re-create the soft-money system through new party-controlled entities. The congressional and litigation efforts to further regulate some 527s are aimed at preventing this outcome.

Of course the BCRA has not solved all problems. For one thing, the FEC's anti-McCain-Feingold majority has done its best to sabotage the new law, and questions about what the law requires and prohibits continue to be fought out at the commission and in the courts. Moreover, the BCRA by design left several large questions about campaign finance -- such as whether the existing presidential public funding system will be reformed to make it relevant and useful to 21st-century campaigns -- for other Congresses. Finally, we continue to gain new experience and information about money and politics. This ongoing experience points out areas where new structures or reforms might well be useful.

It's not a bad thing that still more changes are needed. Neither human beings nor their governmental systems will ever be static -- especially in an area as dynamic as campaign financing. Perfection may not be attainable, but better laws are. McCain-Feingold was a necessary -- but not sufficient -- start.

The writer, a former chairman of the Federal Election Commission, is president of the Campaign Legal Center.


© 2006 The Washington Post Company

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