When George W. Bush reluctantly signs the campaign-finance reform legislation that bears the name of his most bitter Republican rival, it will be easy to celebrate John McCain’s moment of triumph. After so many years of struggle against autocratic Congressional leaders, after so many cases of transparent bribery at the highest levels of politics and government, the pending ban on huge contributions of “soft money” is obviously a victory for virtue over venality.
That righteous feeling was only intensified by the appearance of Senator Mitch McConnell, former bagman for the Senate Republican campaign committee and chief opponent of the McCain-Feingold bill, announcing his plans to restore the corrupt status quo in court. At his side stood Kenneth W. Starr, the former independent counsel whose true vocation-which he never set aside during his years of partisan prosecution-is defending the sellers of tobacco products and lethally flawed automobiles.
So there was a fine pair of corporate advocates, on their way to the discredited Supreme Court to uphold special interests against the popular will. A perfect tableau of conservative power in action-except for that other guy standing next to Messrs. Starr and McConnell, whose name happens to be Floyd Abrams.
Unlike many opponents of the McCain-Feingold reforms, Mr. Abrams must be taken seriously as a person of principle. His advocacy of press freedom in the Pentagon Papers case won him an honored place in history. Although he is no longer as active in politics as he once was, his sympathies have always been on the liberal left. And in this case, he is seeking to thwart the highest editorial priority of his best-known client, The New York Times.
While he won’t comment on The Times or Mr. McConnell, Mr. Abrams is more than willing to explain why he said yes when the Republican Senator called to ask for his help. The McConnell appeal forced him to confront his own increasing discomfort with a bill that, to him, represents an intolerable violation of free speech by banning “issue ads” 60 days before a general election. This provision is intended to cover the gaping loophole in existing law, which permits special interests to fund television campaigns for or against particular candidates, so long as those ads don’t expressly urge a particular vote.
“In trying to plug the loopholes, what the Congress has done is to attack speech itself. Speech is not a loophole,” says Mr. Abrams. As written, the bill “not only raises serious First Amendment issues, but in many respects insuperable First Amendment problems, when the government limits speech about elections. I find that to be particularly so with respect to limitations on so-called issue advertising. The core First Amendment principle is that when people speak out on public affairs, the government has no power to limit them.”
He departs somewhat from his Republican allies on the question of soft money, opposing the flat ban but not some limitation on amounts. As he suggests, many soft-money contributors have no corrupt motivation, while some hard-money donors, whose influence will be enhanced by McCain-Feingold, are clearly seeking favors from government.
“It may just be that we can’t deal with this problem as much as we might like to,” Mr. Abrams warns. “The First Amendment has that effect sometimes, of preventing us from solving some problems the way we might like to …. We ought to have much more public disclosure, instant public disclosure of money that is contributed,” he adds. “I also think that if there’s a real concern about genuine corruption, as opposed to the appearance of corruption, we ought to take a harder look to see if politicians are bought. Maybe we ought to expand the definition of what’s corrupt. But that’s an issue for the criminal law.”
Still, Mr. Abrams isn’t insensitive to the impact of inequalities of wealth and power. And the solution he advocates would be, for his conservative comrades, a far worse nightmare than the half-measures he is helping them to overturn. He believes the best way to achieve electoral equity without violating freedom is public financing.
While Congress is a long way from passing any such profound reform, the McCain-Feingold bill does mandate the U.S. Comptroller General to examine the “clean money/clean election” campaigns of Arizona and Maine-the first states to implement serious public financing-and report on their efficacy to Congress next year.
What that study will reveal, if performed rigorously, is that public financing (combined with limits on private donations) can reduce politicians’ dependence on special interests, encourage citizen participation in elections and improve the competitiveness of non-incumbents-all at nominal expense to taxpayers.
Opponents of McCain-Feingold gleefully predict that those “soft” millions will infiltrate the system again as “hard” millions. If they’re right, the only effective response will be to match the special interests dollar for dollar with public funds. According to Mr. Abrams, “there is no constitutional problem with that.”
