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Jewish World Review May 16, 2002 / 5 Sivan, 5762

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Sham concern for corruption | The document's title is bland: "Reply of Senator John McCain, Senator Russell Feingold, Representative Christopher Shays, Representative Martin Meehan, Senator Olympia Snowe, and Senator James Jeffords in support of their motion to intervene as defendants supporting the constitutionality of the Bipartisan Campaign Reform Act of 2002." But the document's message is fascinating.

File the document under: "Give them enough rope . . ." When McCain et al. explain why they should be heard in defense of BCRA, it is clear why it is indefensible.

BCRA bans so-called "soft money" to political parties, money used for "party building" activities -- voter registration, generic "vote Republican" or "vote Democratic" promotions, issue advertising and voter-turnout activities. BCRA also complicates and restricts, for the clear purpose of suppressing, all broadcast advertising by independent (nonparty) groups that refers to an identifiable federal candidate within 30 days of a primary or 60 days of a general election. McCain et al. give various reasons why they will be personally harmed if BCRA is overturned.

First, they are elected officials "whom the Act seeks to insulate from the actual or apparent corrupting influence of special interest money." So, they will be actually or apparently corrupted if they are not shielded from special interests.

Which means they will, or will appear to, vote other than they would have were the political parties not prohibited from receiving soft money contributions for party-building activities, and were issue groups not effectively prohibited from broadcasting issue advertisements within the 30-day and 60-day "blackout" periods. Absent these restrictions, McCain et al. presumably will vote against their principles, or against their best judgment, or against the interests of their constituents.

However, abundant scholarship demonstrates that most legislative behavior -- and most campaign giving -- is explainable by the legislators' political philosophies, party affiliations or constituents' desires. Furthermore, the meaning of the crucial term used by McCain et al. -- the adjective "special" -- is unclear.

Clearly McCain et al. do not want to be shielded from campaign contributions to their campaigns. Indeed, McCain et al. are defending the BCRA's provisions that double the amount of contributions that can be given directly to them. And they enjoyed tens of millions of dollars being spent by interests -- presumably not the nefarious "special" sort -- to finance the campaign for BCRA.

McCain et al. also say that if the ban on soft money is struck down, they "will face the strong risk that unregulated soft money contributions will again be used in an attempt to influence federal elections in which [we] are among the principal participants." Note two things.

Since passage of the Tillman Act in 1907, it has been illegal for corporations to contribute to campaigns of federal candidates, and in 1947 the Taft-Hartley Act brought labor unions under the same restrictions. Furthermore, McCain et al., in this assertion that they would be harmed by overturning BCRA's new regulations on campaigning, make no mention of the only thing the Supreme Court says justifies such regulations on political speech: preventing corruption or the appearance thereof.

They make no mention of it because corruption it is not what they have uppermost on their minds. What is uppermost is in McCain et al.'s wonderfully revealing description of how overturning BCRA would harm them. They say that if the restrictions on advertising within 30 days of primaries and 60 days of general elections are struck down, they "will face attack in broadcast advertising campaigns mounted by corporations and labor unions."

Imagine that. The poor dears.

This is what McCain et al. really think is a corruption of democracy -- the fact that politicians can be criticized during the days before people are about to vote. This gives the game away.

But, then, the game was obvious when Sen. Paul Wellstone, the Minnesota Democrat, succeeded in amending BCRA by adding prohibitions against certain advocacy by unions and nonprofit corporations (he mentioned the National Rifle Association and the Sierra Club) within the "30-day and 60-day" windows -- the political activity that annoys McCain et al. In a plaintive Senate speech, Wellstone voiced the reformers' fury about what he called "sham ads."

By explaining why they should have standing to defend in court the constitutionality of BCRA -- why overturning it will injure them -- McCain et al. reveal that the supposed concern about corruption is itself a sham, a form of corruption that the First Amendment should prevent. BCRA's aim is the convenience of its enactors, incumbent lawmakers.

Opponents of BCRA should welcome further interventions on its behalf by McCain et al. They are hanging themselves.

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