- The Washington Times - Monday, September 15, 2003

Last month, the U.S. 9th Circuit Court of Appeals offered a preview in Jacobus vs. State of Alaska (Aug. 12, 2003) of the pivotal elements that will inform the United States Supreme Court in deciding the constitutionality of the McCain-Feingold federal campaign finance reform legislation. Four hours of oral argument were held by the high court in a case attacking the federal law in McConnell vs. Federal Election Commission on Sept. 8, and a ruling may be forthcoming as early as the first Monday in October.

In Jacobus, a three-member circuit court panel generally sustained an Alaskan edition of McCain-Feingold as applied to cripple soft money contributions in state campaigns, i.e., donations not intended to influence particular elections. Writing for the panel, Judge Richard A. Paez endorsed the counterfactual although politically correct speculation that soft money plunges voter turnout and engenders public disillusionment with the electoral system. The flabby Jacobus rationale underscores the centrality of judicial philosophy and prejudices to constitutional campaign finance edicts.

In 1996, the Alaska legislature revamped its campaign finance system in accord with crusading scourges who blame the lion’s share of all political ills to private money in elections. Among other things, corporations and labor unions were prohibited from soft-money contributions to any political party to expand the party base, to support or oppose referenda, initiatives, or recalls, to influence the nomination or election of candidates, or otherwise promote the party’s fortunes. Individual soft money contributions were capped at $5,000. But the justifications for Alaska’s anathema of soft money were trifles light as air.

The 1996 Act’s professed reforming purpose was “to restore the public’s trust in the electoral process and to foster good government.” The Josephson Institute, in a report commissioned by the Alaska State Senate, fretted that “the level of trust and confidence in the integrity of the legislature is disturbingly low.” Popular blather bemoaned that corruption and the appearance of corruption were rife in Alaska politics.

What speaks volumes, however, is that Alaska was unable to demonstrate soft money had ever been employed to bribe or otherwise criminally corrupt a government official. The state was unable to show a soft money ban would raise voter turnout or boost public confidence in the legislature or the electoral process. Indeed, during the seven years postdating the ban, no legislative or other study has found a sustaining jump in Alaska voter participation or a climb in the public confidence scale.

That conspicuous gap in proving a nexus between soft money and voter apathy or political alienation or despair is unsurprising. States and the federal government sport a widely discrepant array of campaign finance restrictions on private contributions or expenditures. Yet no research has demonstrated that legislative integrity or public confidence levels are greater in jurisdictions with tight limitations and lesser in those with lax controls.

Furthermore, doubts about the alleged authentic evils of soft money are fortified by the resistance of Sens. John McCain, Arizona Republican, and Russell Feingold, Wisconsin Democrat, and all other congressional champions of McCain-Feingold to promise resignations if the federal ban proves irrelevant to legislative behavior or public confidence in government or the fairness of the rules of the electoral game.

Circuit Judge Paez elided these omissions, and contributed another counterfactual campaign finance myth, in upholding Alaska’s soft money prohibitions and limitations. He insisted that without strict contribution regulations, the rich and the wealthy would monopolize political discourse and hijack government to serve their special financial interests: “[A] failure to regulate in the arena of campaign finance allows the influence of wealthy individuals and corporations to drown out the voices of individual citizens, producing a political system unresponsive to the needs and desires of the public, and causing the public to become disillusioned with and mistrustful of the political system.”

But Judge Paez’s assertion is discredited by volumes of campaign finance experience. No ideas of the rich have ever dominated the ideological marketplace in the United States in modern times. Keynesian economics, New Deal infatuations, and the progressive income tax have been touted with at least as much vigor as supply side dogmas, free enterprise and self-help and a flat tax. Further, campaign finance in federal elections was generally unregulated until the Federal Election Campaign Act of 1974. But no cogent evidence has been marshaled showing the putative ability of the wealthy to drown out the voices of individual citizens has diminished during the 29 years following the 1974 contribution limitations.

The circuit judge’s declaration that the absence of strict campaign finance restrictions ordinarily produces laws divorced from popular desires is also devoid of factual support. He is unable to summon even one law enacted either by Congress or the Alaska legislature that offended majority sentiments. Corporations cast no ballots. And the poorest pauper is the peer of Bill Gates in the franchise. A legislator would thus commit political suicide by consistently voting against individual citizen preferences.

Under the Jacobus precedent, political speech of individuals, corporations, and political parties protected by the First Amendment may be arrested to placate a widespread myth that big money regularly corrupts legislators and distorts legislation to frustrate majority opinion. The fate of McCain-Feingold in the Supreme Court turns on whether five Justices endorse that fatuous principle.

Bruce Fein is a founding partner of Fein & Fein.

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