Monday, December 15, 2003

The history of constitutional law is the history of faddish intellectual currents. Neither the language nor purpose of the Constitution regularly defeat foolishness fortified by orthodoxy. Thus, a razor-thin 5-4 majority of the U.S. Supreme Court last week blessed a staggering assault on the First Amendment’s protection of “soft money” speech by political parties, profit and nonprofit corporations, and unions in McConnell vs. Federal Election Commission (Dec. 10, 2003). Time-honored principles celebrating political advocacy and an informed electorate succumbed to voguish myths sermonizing about the alleged evils of money in politics.

Congress enacted the Bipartisan Campaign Reform Act of 2002 (BCRA) amidst a crescendo of carping against a spiraling of “soft money” in federal elections. The term generally refers to corporate or union monies employed for either of two purposes: donations to the Republican or Democrat national political parties; or, independent issue advertising to support or oppose a candidate without expressly urging electoral victory or defeat.

Handsome corporate and union soft money have funded an escalating share of national party spending. In the most recent election cycle, the political parties raised approximately $300 million — 60 percent of their aggregate soft-money funding — from only 800 donors, featuring a minimum $120,000 contribution. The largest corporate donors routinely contribute to both parties. The latter’s soft money expenditures, however, were praiseworthy: voter registration, get-out-the-vote campaigns, and issue advertising to support or oppose candidates.

Corporate and union soft money in federal elections have been comparably beneficial. In 2000, approximately $350 million of soft-money issue advertising was attributable to the two major parties and six major interest groups. Bribery laws addressed potential soft money evils by criminalizing the making or receipt of a contribution in exchange for a legislative favor.

Human nature inclines politicians and the public to discover scapegoats for manufactured political ills. A decade ago, term limits were summoned as the panacea for allegedly corrupt and unresponsive legislators. When time discredited that elixir, soft money was indicted as the bete noir of perfect government. The polemics, however, wildly diverged from facts, in borrowing from the crusading Republican Party guru Elihu Root more than a century ago.

As the McConnell majority noted, Root championed legislation to ban corporate contributions to prevent “the great aggregations of wealth from using their corporate funds, directly or indirectly,” to elect legislators who would “vote for their protection and the advancement of their interests as against those of the public.” The prohibition, according to Root, would “strik[e] at a constantly growing evil which has done more to shake confidence of the plain people of small means of this country than any other practice that has ever obtained since the foundation of our government.”

But democracy both contemplates and salutes the right of citizens, either solo or in corporate or union combinations, to devote their resources to elect candidates who echo their political desires. Root’s distinction between a selfless “public” legislative interest and selfish private interests is illusory. All individuals and organizations are self-interested in politics, whether princes or paupers, the Chamber of Commerce or the AFL-CIO. That phenomenon of factional division was understood as inevitable in a democracy, as elaborated by James Madison in Federalist 10: “By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community… [To seek elimination of faction is] worse than the disease. Liberty is to faction what air is to fire, an ailment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The Founding Fathers successfully checked faction’s mischief by dispersing power among rival interests, not by suppressing advocacy. Notwithstanding Root and his McCain-Feingold disciples, the law has not been captured by aggregations of wealth. The federal government collects approximately 30 percent of income taxes from the top 1 percent of taxpayers. The lion’s share of the federal budget transfers income from the most productive and industrious to the less productive and diligent. The nation’s most powerful legislative lobby is the AARP (originally, American Association of Retired Persons), not a club of millionaires.

Moreover, neither corporations nor unions enjoy the franchise. Incumbents would lose elections if soft money dictated their actions contrary to the wishes of their voting constituents. The McConnell majority conceded that although soft money may purchase access to officeholders, its ability to influence the course of legislation is dubious. The blunderbuss prohibition in the BCRA was nevertheless justified, the majority maintained, because soft money might tempt officeholders to “decide issues not on the merits or the desires of their constituents, but according to the wishes of those who have made large financial contributions valued by the officeholder.”

The Constitution, of course, empowers Congress to buttress an officeholder’s inherent self-preservation resistance to soft money temptations by punishing bribery. But to strike directly at the temptation by suppressing political speech mutilates democracy in the name of saving it.

Bruce Fein is a founding partner of Fein & Fein.

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