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Money screams (continued)

The futility of attempting to close the ever-growing number of loopholes is palpable. For instance, a controversial provision of McCain-Feingold prohibits labor unions and corporations from funding so-called issue ads within 30 days of a primary or 60 days of a general election. Yet those same groups can get around the law by setting up political-action committees and raising hard money (that is, contributions subject to caps and reporting requirements), which would exempt them from the time limits. Last week the National Rifle Association announced that if the FEC takes the strict approach in the current case, it will set up its own news operation as an alternative means of getting its message out. And even proponents of reform — like Representative Marty Meehan, a Massachusetts Democrat and co-author of McCain-Feingold — say 527s such as MoveOn could get around any new limits the FEC might impose simply by registering as political organizations and complying with fundraising limits.

The explosion of regulations, coupled with the ease with which those regulations are evaded, create an odd sense of cognitive dissonance. On the one hand, anyone concerned about the right to free expression should be outraged by attempts to limit and regulate that expression. On the other hand, the regulations are so easily evaded that outrage is inevitably tempered by cynicism. So why attempt to regulate the system at all?

Meehan, whose ultimate goal is public financing, argues that the old, unregulated system — the one that got Eugene McCarthy’s campaign off the ground — is simply too liable to be abused. "I think when politicians in Washington are asking individuals, corporations, special interests for unlimited amounts of money, that has a corrupting influence over everything we do," Meehan told me.

But the notion that spending on political campaigns was out of control and needed to be reined in is dubious. Brandeis University historian Morton Keller, in a piece for the Boston Globe a couple of years ago, observed that the $1 billion cost of the 2000 presidential campaign broke down to about $9 or $10 per voter — hardly an extravagant sum. And Bradley Smith, after being named to the FEC in 2001 (he is now the chairman), said in a Salon interview that big business spends more on lobbying than on campaign contributions by a factor of 10. As Meehan observes, lobbying continues to have a pernicious effect on politics, noting that the pharmaceutical industry got virtually everything it wanted in last year’s budget-busting Medicare bill — and it won by following the rules. "They got it with hard money and high-paid lobbyists," Meehan says. "I think about that. I think about it a lot."

IN POLITICAL campaigns, money is just another word for television. Restrictions on money mean fewer political spots — hardly good for a thriving democracy, regardless of the quality of those spots. Rather than making it more difficult to buy TV time, Carol Rose, executive director of the ACLU of Massachusetts, thinks it would make more sense to require broadcasters to provide a certain amount of free time to political candidates as a condition of receiving their licenses to use the public airwaves. "Money is about buying TV time. If we’re really interested in fairness then that’s where the political battle needs to be," Rose says.

That’s one idea. Here’s another: radical deregulation coupled with strict reporting requirements. A melding of Eugene McCarthy and the Internet, as it were. If someone wanted to contribute, say, $100,000 to John Kerry or George W. Bush, she could — and her name, address, and occupation would be posted on the Internet within 72 hours, or 24 hours, or whatever interval was determined to strike the right balance between speed and practicality.

Such a system already exists in Virginia, according to Jan Witold Baran, a conservative lawyer who specializes in campaign-finance law. Baran notes that, several years ago, the Reverend Pat Robertson gave $50,000 to a gubernatorial candidate, whose opponent instantly made it an issue. "It seems to me that a less-regulated and more-transparent campaign-finance system is preferable," Baran told me. "Now, is that likely to occur? It certainly doesn’t seem likely to occur, because the public has an inherent and certainly understandable suspicion of politicians and money." Yet Baran is hardly alone, and it is not just fellow conservatives who agree with him. For instance, the noted First Amendment lawyer Floyd Abrams takes Baran’s position.

So does Kathleen Sullivan, a professor of constitutional law and dean of Stanford Law School, who makes the additional point that if campaign contributions were deregulated, the problem of independent expenditures (such as those by 527s) would all but disappear, since most people would rather give to a candidate directly. "Contribution limits drive political money away from the candidates, who are accountable to the people at the voting booth, toward the parties and independent organizations, which are not," Sullivan wrote in a New York Times op-ed piece four years ago.

To be sure, the prospect that vast sums of money would start flowing from wealthy contributors to candidates raises some alarms. "There’s quite a bit that your money can buy if there are no limits," says Paul Sanford, general counsel for the Center for Responsive Politics, which supports strict regulation of 527s. "I think that the soft-money system that McCain-Feingold undid really proved that." Then, too, such a system would almost certainly favor Republicans over Democrats, given that there are more wealthy Republicans than Democrats. But such is ever the case.

Certainly the current system isn’t working. The very MoveOn.org campaign that Wes Boyd is trying to keep on track speaks to that: the Democrats, who had excelled in raising soft-money contributions, are now at a disadvantage, since McCain-Feingold eliminated soft money. Enter MoveOn and the Media Fund to hoover up that soft money and run the ads the Democrats would like to buy but can no longer afford.

Who needs all that maneuvering? Let George Soros donate millions directly to the Kerry campaign, rather than sending it to Boyd and Harold Ickes in the hopes that they’ll figure out what to do with it. Thirty years of reform have brought us confusion, loopholes, and cynicism. Could deregulation really be any worse?

Dan Kennedy can be reached at dkennedy[a]phx.com. Read his daily Media Log at BostonPhoenix.com.

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Issue Date: April 23 - 29, 2004
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