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McCain-Feingold Failed to Meet Its Goals

Writing as a Guest Observer in the April 23 edition of Roll Call, David Vance of the Campaign Legal Center accuses critics of the McCain-Feingold campaign finance law of “revisionist” history. But a little examination shows that it is Mr. Vance who is creating new facts from whole cloth.

Mr. Vance begins by claiming that it is “absurd” to think that McCain-Feingold was “intended to get money out of politics.” Now, it may be true that advocates of the law didn’t really believe that it would get money out of politics, but here is a small taste of what actually was said:

“I’ve worked with Sen. McCain on reform legislation before and I know that by working in a bipartisan manner, we can get big money out of politics.” — Rep. Dennis Moore (D-Kan.), July 12, 2001;

“The time has come to take the money out of politics.” — Rep. Carolyn Maloney (D-N.Y.), Feb. 13, 2002;

“Let’s get the money out of politics. That’s what campaign finance reform is all about.” — Rep. Barbara Lee (D-Calif.), Feb. 13. 2002;

“[A] nation would want to limit the flow of money into political parties.” — Josh Rosenkranz, president, Brennan Center for Justice, in Roll Call, March 18, 2002.

And we haven’t even gotten to the editorial pages! Mr. Vance can play little games with who said exactly what and characterize his opponents how he chooses, but the fact is that McCain-Feingold is a rather obvious failure. If one thought McCain-Feingold would reduce the time candidates spend raising money or that it would keep money — big money, soft money, corporate money, union money, little money or lots of money — out of politics, they were sadly mistaken. Moreover, few would dare to argue that McCain-Feingold has “cleaned up the system.” The era of McCain-Feingold is the era of disgraced lobbyist Jack Abramoff, former Reps. Bob Ney (R-Ohio) and Duke Cunningham (R-Calif.), and cash in Rep. William Jefferson’s (D-La.) fridge.

Mr. Vance next cherry-picks quotes to argue that McCain-Feingold hasn’t been nearly as bad for political parties as some experts predicted. This argument — that the law did not, as some admittedly predicted, destroy long-standing private institutions that have been a crucial component of our democracy — seems like a curious defense of any law. Certainly it is a low barrier to hurdle — somewhat like arguing that Hurricane Katrina relief has been a model of response to a natural disaster because, after all, Tulane University is doing well enough. Beyond that, there is little doubt that parties — especially the Democratic Party — have lost relative influence in post-McCain-Feingold campaigns to non-party organizations such as and America Coming Together. And informed observers believe that the Democrats left as many as 20 potential House seats on the table in the fall because of a lack of funds.

Mr. Vance then argues that the rise of 527s such as MoveOn was the result of lack of enforcement by the Federal Election Commission. Mr. Vance makes the remarkable claim that, “what was not predictable was the utter failure of the Federal Election Commission to regulate 527 groups as political committees once they began to raise and spend money to influence federal elections.”

Really? In fact, prior to McCain-Feingold the FEC had never held that 527s were political committees even when they “spen[t] money to influence federal elections.” Rather, the standard, following many constitutional rulings by the Supreme Court and lower courts, had always been that, to be regulated as a political committee, a group had to either coordinate its expenditures with a candidate or party or engage in “express advocacy” of election or defeat. Express advocacy, in turn, meant what the supporters of McCain-Feingold derided as “magic words,” limited to phrases such as “vote for,” “defeat,” “support” and the like.

It was for this very reason that McCain-Feingold included a ban on broadcast ads that mentioned a candidate within 60 days of an election, arguing that almost all such ads aired that close to an election were the “functional equivalent” of “express advocacy.” But as Roll Call Executive Editor Morton M. Kondracke wrote in Roll Call on March 25, 2002, in the immediate aftermath of passage, “Political ads by special interest groups in the last 60 days before a campaign can only be financed with hard money whose sources are fully disclosed … before that time, the new McCain- Feingold/Shays-Meehan law will create what amounts to a free-fire zone, allowing groups to mount ad campaigns with money collected in unlimited amounts.” The truth is, everybody knew that McCain-Feingold would boost the influence of independent 527 organizations more than 60 days out from an election. Or, as Sen. Mitch McConnell (R-Ky.) said on the day the Supreme Court upheld the constitutionality of the law, “Soft money is not gone; it has just changed its address.”

Has McCain-Feingold been a success? It is not really a close call: It has been five years since McCain-Feingold passed. Just ask yourself: Is our democracy in better shape?

Former Federal Election Commission Chairman Bradley A. Smith is a professor of law at Capital University in Columbus, Ohio, and chairman of the Center for Competitive Politics.

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