Nice column from Al Hunt today on the recent court decision regarding the campaign reform legislation. He argues that what's interesting about the decision is the level and kinds of agreement between two of the three judges and the fact that the third, a Helms crony, started writing an opinion before all the briefs were filed, or so say the rumours.
The online version of this essay includes a graph illustrating the growth of soft money in national campaigns. Worth a look.
POLITICS & PEOPLE
By AL HUNT
A Compelling Case
For McCain-Feingold
online.wsj.com
The "first clip" theory, that the initial news story about a person or event shapes subsequent pieces, supposedly died with the computer age. But it surfaced recently when the first wire-service reports indicated that a lower court had thrown out much of the McCain-Feingold campaign-finance legislation.
Actually, the three-member court, in a split decision, upheld most of the important elements of the legislation. Indeed the first notice of appeal came from Sen. Mitch McConnell and opponents only hours after issuance of this 1,638-page, divided, convoluted opinion.
It may not matter, as all along both sides realized this decision was only preliminary, that the Supreme Court would decide the matter. This week, the lower court suspended its decision to await the consideration on appeal, probably the first order of business this fall. But the court's factual record is intended to serve as a guidepost, and that is a smashing victory for McCain-Feingold.
Judge Kollar-Kotelly, in reviewing the exhaustive evidence offered by both sides, wrote there is a "treasure trove" of testimony from politicians and documented evidence that large donations are given with the expectation it will provide donors access to influential federal decisions: "This expectation is often realized," she wrote. Judge Leon wrote of "ample evidence" that this perceived special influence for big contributors undermines the public confidence and thus gives "rise to an appearance of corruption."
First two judges -- Colleen Kollar-Kotelly, a Democrat, and Richard Leon, a Republican -- separately found a compelling case that large campaign contributions are corrupting our democracy, or giving the appearance of corruption. This is the rationale for the bill's elimination of soft money, unregulated and unlimited monies, on the federal level.
A portion of the unsealed evidence buttresses that case: a 1996 California Democratic party memo suggesting to donors that a $25,000 soft money contribution would entitle them to a meeting with President Clinton; a Republican National Committee memo on donors about to commit $100,000 in soft money contributions, left no doubt of their motive: "They want access to political players . . . Their top issue is tort reform."
In 1996, Eli Lilly, the big Republican-supporting drug firm, was scared that a Clinton reelection would shut them out; a company executive, however, knew this was fixable: "We can get back into this by giving $50,000 to $100,000" to the Democrats, he said. Former Sen. Paul Simon has noted that it's not just face time these big bucks produce. He cited a special provision enacted for Federal Express when he was in the Senate as colleagues chastised him for opposing a big donor.
The court made abundantly clear that federal officeholders raising soft money, and the ruses they employ as covers, create a huge problem with the public. A survey by pollster Mark Mellman, a Democrat, and Dick Wirthlin, a Republican, found that over seven in 10 Americans believe the money causes politicians sometimes to vote against the best interests of both their own constituents and the national interest.
In the toughest legal or constitutional issue -- the so-called "issue ads" -- the court majority says that many really are shams, designed to evade the law and help or hurt a specific candidate. Judge Leon said "the factual record unequivocally establishes" that advertisements of this sort "have not only been crafted for the specific purpose of directly affecting federal elections, but have been very successful in doing just that"; Judge Kollar-Kotelly said they "make a mockery" of the supposed justification for soft money, namely, party building.
This began in 1996 when the AFL-CIO exploited this loophole in a $35 million expenditure, out of union treasuries, to win back control of then House, thinly veiled as "issue ads." More recently, Texas's Wyly Brothers took out attack ads in 2000 against John McCain that really were aimed at helping George W. Bush, and the drug industry ran phony ads on prescription drugs designed to help specific lawmakers who favored a weaker version of the measure. What this and other schemes do is permit corporations and labor unions to use their own treasures to influence federal elections, a practice that supposedly was outlawed over a half-century ago.
Perhaps most revealing is the way this decision unfolded, taking months longer than expected. Initially both sides thought this three-member court would come down against most of the law. Judge Kollar-Kotelly, they believed, was the only likely supporter. Appeals Court Judge Karen Henderson, a Strom Thurmond protegee, made no secret of her disdain for the law, and according to a National Public Radio report, actually began drafting her opinion even before all the briefs were filed.
Court watchers thought Richard Leon likely would join Judge Henderson. He was appointed to the district court by George W. Bush last year, and had served as a Republican counsel in numerous House investigations. During the oral arguments he was unremittingly skeptical of the law and one lawyer speculated then he was "born and bred" to vote with Mitch McConnell.
Judge Henderson's cavalier style may have made the other two judges more likely to join forces. But there is every indication that Judge Leon, who probably overreached in part of his decision, looked at the overwhelming factual material and changed his mind. If the high court is as diligent, it's hard to see how they could give a green light to a system that gets more corrupt every season. |
