Capture the Flag

The phony reform of campaign finance


Proponents of campaign finance reform characterize virtually every policy they want-banning soft money; restricting the ability of independent organizations, unions, and corporations to make political statements; and securing more taxpayer money for political candidates-as an effort to "level the playing field."

This analogy is profoundly wrong. "Politics is not football where two teams play on a level, clearly marked field," says Bradley A. Smith, a member of the Federal Election Commission, a law professor at Ohio's Capital University, and author of a provocative book, Unfree Speech: The Folly of Campaign Finance Reform. "It's much more like capture the flag, where you have rocky terrain, maybe some hills and lakes. It's not equal on both sides and each side has advantages and disadvantages."

Despite the common gridiron metaphor, Smith underscores, the Republicans and Democrats are most certainly not moving their agendas in rule-bound, 10-yard intervals. In fact, they aren't even the only teams in the game (remember third parties?), nor are they always at odds with each other. Sure, in some contexts, the battle between the major parties is paramount. But the more important distinction is whether you're an incumbent or a challenger.

Recognizing this helps to make sense of the McCain-Feingold bill that emerged from the Senate on Monday. The bill was floundering for a long time. It was only when a critical mass of senators all figured out they could play on the same team—the incumbent team—that McCain-Feingold finally moved towards passage. McCain claimed Sunday on NBC's Meet the Press that his bill "threatens incumbency." He may actually believe this, but it's hard to see how.

Consider the key amendments the senators passed before voting in favor of the legislation. The first was proffered by Sen. Pete Domenici (R-N.M.). In the name of cleaning up the system—ridding it of money and all that "undue influence"—McCain-Feingold now allows individuals to contribute no more than $2,000 to a particular candidate for federal office. But Domenici's amendment allows any senator who is faced with a self-funded challenger to collect money in increments as high as $12,000. Why? Nothing scares a rich senator with a full campaign chest—and they're all rich with full campaign chests—more than an even richer challenger who is able to self-fund a campaign. Think Democrat Maria Cantwell, the New Economy millionaire who won a Washington state Senate seat from incumbent Slade Gorton, or Jon Corzine, the financial executive who is now a proud Democratic senator from New Jersey.

To be sure, being a millionaire challenger doesn't mean you can win automatically; seats can't simply be bought. Just ask Michael Huffington, the massively loaded former Mr. Arianna Huffington, who shelled out record dollars trying to beat Sen. Dianne Feinstein (D-Calif.) a few years back. But having a personal fortune does allow a person to get her message out, which is necessary to unseat someone who's able to use all of the perquisites of office—and a portion of the federal budget—to convince constituents that he's a good person deserving of a lifetime sinecure to the world's greatest legislative body.

"One of the few types of challengers who can threaten incumbents are millionaires," notes Smith. "So they pass a rule that will help them against millionaire challengers. I guess the constitutional theory is that people running against millionaires are not easily corrupted but that folks who are running against average citizens are easily corrupted."

Sen. Robert Torricelli (D-N.J.) offered a second amendment to McCain-Feingold. It provides Senate candidates with cut-rate TV time. Speech, it turns out, is expensive, even the political speech our First Amendment seeks to protect. So the senators want to make it a little cheaper for them. Their bill, however, doesn't make it any less expensive for individuals or groups who just want to criticize elected officials with issue ads; if you want to criticize a candidate or one of their policies, then you have pull full price. This is simply shameless special pleading.

Then there's the anti-negative ad provision. Once in office, elected officials tend to do many bad things that upset people, like vote to raise taxes and then use federal money to build monuments to figures such as Dr. Seuss. Challengers, to be successful, need to point these things out. This is called "negative campaigning," and elected officials hate it, not just because it hurts their feelings, but because it threatens their jobs. Sen. Ron Wyden (D-Oregon) sponsored a successful amendment that requires any candidate who mentions her opponent's name in a television advertisement to put her own picture on the ad "for no less than four seconds." If you don't do that, you can't get the cheap ad rates the senators voted themselves.

The rhetoric around Wyden's amendment stressed "uplifting" the tone of campaigns and all that. But Smith sees a much more self-interested motivation. "This is clearly a provision designed to help incumbents more than challengers," he says. "Negative ads are most effective against incumbents. If you want to beat an incumbent, you first have to explain to people why the incumbent shouldn't be in office."

The McCain-Feingold bill, some version of which is likely to make it through the House, is a good enough reason for me.