| Supreme Court & Campaign Finance|
With Thomas Mann
The Brookings Institution
Tuesday, June 17, 2003; Noon ET
What do you think of the Supreme Court's ruling that the government can ban campaign contributions from advocacy groups? How does the recent decision affect the 2002 McCain-Feingold campaign finance law?
Thomas E. Mann, senior fellow of governmental studies at the Brookings Institution, will be online to discuss campaign finance reform and the Supreme Court ruling.
The transcript follows.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
Indiananpolis, Ind.: How much of a victory is those for McCain-Feingold supporters? Was a 7-2 decision even expected?
Thomas Mann: The betting on FEC v. Beaumont was that the Supreme Court was likely to reverse the lower court decision and uphold the ban on corporate contributions to candidates, including nonprofit advocacy corporations. That is what the Court did, but it was by no means certain that they would. Also, the size of the majority, 7-2, with Rehndquist and O'Connor signing on to Souter's opinion, is significant. I believe McCain-Feingold supporters should be encouraged by this decision. It strongly upheld a set of rationales for regulating corporate financing of federal elections and gave deference to Congress to fashion appropriate means for doing so. The Court was willing to limit the First Amendment rights of corporations in elections and apply the anti-circumvention rationale that it used for parties in Colorado II to corporate election activity. While one never knows how individual justices will respond to a new set of questions, law and evidence, I think Beaumont points to the Court upholding the twin pillars of BCRA dealing with soft money and issue advocacy.
Charlottesville, Va.: How much do you think the Supreme Court will rely on this recent decision, seeing as the judges were quite split in the decision? It seems that the one judge thought most provisions were unconstitutional, while the other thought they were mostly constitutional.
Thomas Mann: Justices Thomas and Scalia are adamantly opposed to campaign finance regulation. They will almost certainly hold BCRA unconstitutional. Justice Kennedy, who questions the constitutional distinction between contributions and expenditures, is likely to join them. But the other 6 justices seem very much open to the approach taken by Congress in writing the new law. Rehnquist and O'Connor will be key to the outcome. Beaumont suggests they might lean in the direction of upholding the law.
Humble, Mich.: Mr. Mann,
Why is the problem always viewed as too much money in politics rather than the opposite: too much politics in money. The way I see it is that we have lost sight of the fundamental philosophical purpose for government--that is, to be an unbiased referee enforcing end-independent rules. Instead, we now have a government whose self-defined role is to construct specific outcomes, thus there will always be money flowing into the hands of those having the ability to effectuate an outcome favorable to specific parties. The ability to take from one party and give to another will always result in money flowing to the broker of such pillage. Would you agree at all that this problem is unsolvable via campaign finance reform?
Thanks for your answer.
Thomas Mann: You raise a very important question of governance in a representative democracy. Elected officials are in a position to extract "rents" from economic interests in the form of campaign contributions. The new law seeks to limit the opportunities for such "extortion" by banning soft money -- unlimited contributions from corporations, unions and individuals. It deals with the danger of huge contributions in the system but it doesn't eliminate the problem. But there is no way to remove politics from government. With a diverse country and many competing interests, politics is the only way to manage those differences and live together peacefully. Our challenge is to constantly improve the shortcomings in that democratic process.
St. Petersburg, Fla.: Are there any crazy ideas for campaign finance that don't get a lot of play, but deserve to? What's the most inventive proposed system that you're aware of, regardless of its chances at actually being implemented?
Thomas Mann: I'm attracted to proposals for free broadcast time for candidates and parties and more public affairs programming by television and radio stations, both based on their public interest obligations for being able to use the broadcast spectrum.
Washington, D.C.: Is there anything to indicate from Souter's opinion that he may be trying to build a majority for McCain Feingold?
Thomas Mann: Yes. He mentioned BCRA in a long list of congressional enactments to limit the role of corporations in federal elections. And he managed to draw on Austin, a case upholding the such regulation that drew a dissent from O'Connor, without losing O'Connor this time. Looks cagey to me.
Flint, Mich.: I don't understand why more citizens don't see judges as politicians. They have to run for office under the banner of "a" political party, they have to collect money for campaigns, etc. They are politicians who look at the law through their political glasses.
And they remember who appoints them and WHY they got appointed. Isn't that how it really works once we Americans get past all this pie-in-the-sky-talk about how blind justice is?
Thomas Mann: Many state judges are elected and this poses genuine problems for the judicial system. A number of organizations have called for the end of judicial elections. At the federal level, where all judges and justices are appointed, ideology seems increasingly involved in judicial selection. And some salient decisions such as Bush v. Gore seem very much ideologically based. But the capacity remains on the bench for independent deliberation. And for this we should be grateful (and pray for more of it).
Portland, Ore.: What's the major difference between this case and McCain-Feingold? Is it that McCain-Feingold deals with corporations giving to the Political party and not individual candidates?
Thomas Mann: That is a part of the difference. Beaumont dealt with a narrow question: is the provision of the law under FECA prohibiting nonprofit advocacy corporate contributions to candidates constitutional? The Court decided that it was. McCain-Feingold includes provisions to prohibit corporate and union soft-money donations to parties and corporate and union treasury financing of electioneering communications (candidate-specific issue ads runs near an election and targeted on the candidate's constituency). The first deals with nonfederal contributions to parties; the second with expenditures for political ads. There are connections in the legal reasoning of the two cases but the specifics are quite different.
San Diego, Calif.: Why did the Republican party fight so hard against McCain-Feingold? It seems to benefit them much more than the Democrats, since they have the ability to raise more "hard money."
Thomas Mann: Most Republicans are philosophically opposed to the regulation of money in politics and voted accordingly. Some also believe that they would derive a soft money advantage over the Democrats in the long run. Others are afraid that the law will strengthen interest groups at the expense of parties.
Washington, D.C.: With all of this constitutional squabbling over the new federal CFR legislation, why don't we look at a constitutionally viable and more effective CFR solution in full public financing?
Thomas Mann: We already have a full public financing system for the presidential general election, but it has been weakened in recent years by the emergence of soft money and issue advocacy. It is almost impossible to make positive improvements in the system without first patching the holes in the existing regulatory fabric. States that have tried full public financing are discovering this reality.
Bethesda, Md.: Given your high profile advocacy for the passage of McCain-Feingold, do you think that you are truly able to give a fair, comprehensive, unbaised view of these issues?
Thomas Mann: That is for you to judge. My positions on the constitutionality and efficacy of the new law are well known (positive on both counts). But as a political scientist at Brookings, I try hard to get the analysis right and to limit the advocacy. I submitted an expert report for the defendants in this case, which was cited in the per curiam decision by the three-judge district court panel. Readers are invited to see if I came close to being fair, comprehensive and unbiased.
Key West, Fla.: I'm astounded that the court is reacting to media and professional reformer pressure on this issue rather than the first amendment. Hasn't history shown that the answer to speech someone doesn't like is more speech, not less?
Thomas Mann: The Court has long accepted limits on speech, when it serves other values we hold dear and doesn't unduly constrain that critical freedom. I honestly don't believe anyone's speech is constrained by the new campaign finance law. It's all about how that speech is financed.
Downtown, Washington, D.C.: Does the ruling have any impact on organizations like EMILY's List that bundle individual donations?
Thomas Mann: Bundling organizations and individual brokers are likely to find their roles enhanced in the new hard-money world of campaign finance.
Thomas Mann: I've very much enjoyed this on-line chat. Thanks for the many thoughtful questions, a number of which I was unable to get to.
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