McCain-Feingold on the ropes?

The seventh in my op-ed series for Liberty Features Syndicate, this cleared September 17th.

If you ask Americans about campaign finance reform, most likely they’ll answer something about the need for it because “there’s too much money in politics,” not realizing that to many the freedom to donate to the political candidate of their choice is a right equated with everything else granted by the First Amendment. It’s quite possible those free speech advocates will soon be pleased as a key part of the McCain-Feingold campaign finance reform package may be overturned by the Supreme Court.

In what began as a quite innocent case brought out as a clarification request by the producers of “Hillary: The Movie” asking whether they were bound by McCain-Feingold’s 60-day pre-election prohibition on independent groups airing campaign ads and other campaign financing laws in buying commercial time to advertise their documentary, the argument was widened by the Supreme Court into a much more broad discussion on whether the century-old ban on direct corporate and labor union electoral donations should be lifted.

A clear sign of their possible intent came in questioning by Chief Justice John Roberts, who compared the government’s interference in campaign finance as akin to “Big Brother” and dismissed the federal government’s argument by Solicitor General Elena Kagan, noting sharply that the power to enforce the First Amendment doesn’t belong in the hands of Federal Elections Commission bureaucrats.

When it was enacted seven years ago, McCain-Feingold was supposed to take the money out of politics. But we need only look at the vast monetary advantage enjoyed by President Obama once he reneged on a promise to use public funding for the 2008 Presidential election to see where these reforms failed. Obama outspent Republican John McCain – who played by the public funding rules he ironically helped create and was thus hamstrung in general election campaign spending – by a factor of better than 2-to-1 over the yearlong campaign, with the total on all sides exceeding $1 billion.

Critics charge that overturning the longstanding ban will result in corporations and unions “purchasing” House and Senate seats – in essence, government to the highest bidder. However, current law only prohibits direct donations; instead, various special interests on both sides of an issue create front groups with innocent-sounding names such as Healthy Economy Now, a group favoring Obamacare, or Patients United Now, which opposes nationalization, to solicit donations. It’s doubtful this sleight-of-hand would abate even if restrictions on corporate and union donations were lifted.

It’s also taken for granted that corporations would donate to Republicans as unions traditionally favor Democrats. But that wouldn’t necessarily be so – some major corporations may see the large federal government favored by Democrats as an advantage as they pursue rent-seeking opportunities in fields like “green” energy or health insurance. Most of the major players cater to the party in power at the time in order to find advantage over competitors or seek protection from regulation.

With the freedom of lifting prohibitions, though, will come the responsibility of the media to be watchdogs and unearth the situations where corporations, unions, or – if individual donation limits are struck down in the future – people invest heavily in a race and favor a specific candidate. There’s already a number of good websites which track campaign finance on the state and federal levels and their work will surely continue whether the rules are changed or not.

Yet even if the prohibitions on corporate and union donations are lifted by Supreme Court edict, there will still be the need to follow an unyielding centuries-old rule – caveat emptor.

Michael Swartz is a Liberty Features Syndicated Writer

Author: Michael

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