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Risks of Enactment

Monday, December 8, 1997; Page A18

THE SENATE HAS agreed to cast an up-or-down vote next spring on what remains of the McCain-Feingold campaign finance reform bill. The basic provision in this remnant is a good idea. It would outlaw the phony distinction between so-called soft money and hard that was the cover for the main abuses in the 1996 presidential campaign. Candidates would no longer be able to use the national party organizations as straws and raise and spend through them, at one remove, funds they are barred by law from raising and spending directly.

That would leave it a cleaner system. But, as happens almost every time you try to impose such limits on the giving and getting of these funds, there is a next question. If they can't use the parties as straws, what about other organizations, private and ostensibly independent advocacy groups of one kind or another? You name it, the Committee for a More Sensible whatever you choose, tax structure, environmental policy, investment climate, designated-hitter rule, campaign finance law. Can they steer the money to those, knowing pretty well how it is likely to be used? They were doing some of that in last year's campaign too.

On the one hand, having told them they can't do at one remove what they can't do directly, you don't want to turn around and tell them that two removes is okay. It makes no sense to pass a law and turn a blind eye to its all-but-certain evasion all in the same stroke. On the other hand, no one can want to suppress the advocacy in which this tier of groups engages. It is not just that they have a First Amendment right to say what they please; it's healthy that they say it, whatever it is. For the sake of the democracy, you want them not just to be able to do so, but to do so in fact. Two legitimate not to say fundamental goals of good government are in conflict – how to maintain free political expression while at the same time keeping groups with money from buying, if not candidates, then offices and the policies over which those in the offices will have control. If you don't want the campaign laws to be either a sham or a burden, where do you draw the line?

McCain-Feingold tries to do it in part with content restrictions. It would put new limits on what advocacy groups could use their funds to say as election days approached. It relies on a distinction that the courts also have tried to draw between "issue" and "express" advocacy – urging people to take a particular view of an issue as distinct from urging them to vote for a particular candidate because of his view of the issue. But that too is a false distinction that quickly breaks down and involves those who have to enforce it in ludicrous arguments that no one can want a regulatory body or court to have to make. A better alternative might be to let the groups engage in whatever forms of advocacy they please but limit where they can turn for the funds to pay for it. Police the money rather than the words; the money is what the exercise is supposed to be about.

So we urge a rethinking of this part of the bill. We also wish the issue were more urgent. The leadership has agreed to a vote in the Senate. It hasn't agreed to a bill. This is a case in which, unfortunately, the risk of enactment is pretty low. It's always that way with campaign finance. The real problem with this bill isn't fixing the parts that are wrong; it's passing the parts that are right.

© Copyright 1997 The Washington Post Company

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