Money Talks, and the Court Listens
By E. J. Dionne Jr.
Friday, December 12, 2003; Page A37
In upholding reforms in the campaign finance system this week, the Supreme Court did not mince words, split differences, rewrite legislation or sidestep issues. It was simultaneously bold and humble. The justices faced the big questions before them and gave unequivocal answers.
Yes, Congress can pass laws to stop runaway campaign contributions from corrupting politics. And, no, such regulations do not violate the First Amendment, because there is no constitutional right to buy influence.
The majority decision, written by Justices John Paul Stevens and Sandra Day O'Connor, is refreshing because it resolutely avoids mystifying abstractions and faces the political world squarely as it is. Writing for the five-justice majority, Stevens and O'Connor asked whether those large, unregulated campaign contributions that pass under the label of "soft money" have had "a corrupting influence or give[n] rise to the appearance of corruption."
"Both common sense and the ample record in these cases confirm Congress' belief that they do," Stevens and O'Connor insisted. "It is not only plausible, but likely, that candidates would feel grateful for such donations, and that donors would seek to exploit that gratitude."
Here is the key passage: "Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. . . . And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation."
And having declared this principle, the court gave Congress wide room to deal with the problem of corruption. That's where the humility came in. The court did not choose to render the McCain-Feingold campaign reform bill ineffective by knocking out selected provisions designed to close loopholes -- for example, its regulations on advertisements in the period immediately before primaries and elections. It let the whole thing stand, with only minor tweaking, in order to show "proper deference to Congress' ability to weigh competing constitutional interests in an area in which it enjoys particular expertise." At one and the same time, the court's majority embraced reform and rejected judicial activism. A good day's work.
After years in which opponents of reform tried to defy nearly a century of court decisions by claiming that any efforts to restrict the power of money in politics was unconstitutional, this majority declared, as Sen. John McCain (R-Ariz.) summarized matters pithily in an interview, that "money is property, money is not speech."
Fred Wertheimer, president of Democracy 21 and a prime mover behind campaign reform efforts, said the clarity of the decision would transform the debate over campaign money: "Legally, politically and programmatically, it opens the way for further reform."
Although the bill was genuinely bipartisan, Democrats provided the majority of the votes. Yet many in the party were quietly mourning the passing of soft money and claiming the new system would benefit Republicans. This is unseemly -- and foolish.
Sen. Russell Feingold (D-Wis.) said his party developed a distorted view of soft money in the 1990s because "we had the number one fundraiser in the White House." He was referring to Bill Clinton. The simple principle is that soft money goes to where the power is. Pardon me, but right now that's not the Democratic Party.
"Democrats have to be smoking something very illegal if they believe they would be in better shape with a Republican president and a Republican Congress raising soft money," Feingold said in an interview. "If there were soft money now, we would be so far behind that we wouldn't even be able to see the Republicans."
Part of the court's realism was in declaring that there will never be a perfect solution to the problem of money in politics. The court said it was "under no illusion" that McCain-Feingold "will be the last congressional statement on the matter." It added: "Money, like water, will always find an outlet."
But instead of offering a counsel of despair, the court opened an avenue of hope. It is the nature of reform that particular reform measures must constantly be updated, adjusted and improved. That's why McCain and Feingold said they would immediately turn to new fronts, including reform of the Federal Election Commission, free television time for candidates and reforming the financing of presidential campaigns.
The Supreme Court has declared that we are entitled to something more than the best democracy money can buy. In so doing, it has struck a blow for freedom.
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