With McCain-Feingold Gone, What Now?

With the Bipartisan Campaign Reform Act (aka McCain-Feingold) now found unconstitutional we are back to a world where soft money reigns supreme. The BCRA had all sort of problems, but most of them can be summed up by the following: people always find a way. The problem with trying to control the flow of money is that there’s always a way around the restictions. What about the perceived wrongs the legislation was originally designed to fix? As the clock is effectively set back to 2001 as far as electioneering is concerned, what steps, if any, can and should be taken to address them?

First off, let’s take a look at them (note, I culled these from here):

1.) Too much soft money flowing from corporation and unions.
2.) The skirting of campaign finance laws through the use of ads that don’t advocate for or against a specific candidate.
3.) The laundering of money by corporations and unions through non-profits.
4.) Insufficent transparency about how (and how much) money is being spent by corporations and unions.
5.) Corporation and union funds being spent on elections, sometimes against the wishes of the individuals who make up the those enterprises.
6.) Too much foreign money being spent on elections.

There are no doubt others but these, I believe, are the major ones.

Numbers 1 and 3 fall under the “people always find a way” axiom I mentioned above. You can try to restrict it and you end up with the BCRA. I think the best that can be done is to enforce strict disclosure rules at both ends of the line. Corporations and unions disclose exactly how much money they donate to the national parties. The national parties account for every penny of that money; who’s campaigns it’s spent on and much. I’m sure this information is buried somewhere in each entity’s tax returns. But it should be easily accessible to anyone who wants to see it, collated and indexed on a website where anyone can find out how much any corporation or union spent on electioneering. It would force these entities to be upfront about how they spend their money and how much of it they’re spending. This, incidentally, would also address number 4.

If a law has to be continuously tweaked to cover an ever-growing number of loopholes, it’s probably a bad law. The restrictions on ads that led to number 2 were put in place to keep big-moneyed entities from tilting an election at the last minute. But the restrictions allowed for the ads to be crafted a certain way and still be acceptable. Rewrite the law to try and close the loophole? A new class of ads will emerge that fall inside the regulations but have the same effect. Either ban all ads that deal with any campaign issue/candidate/anything else in the 30 day (for state/local) or 60 day (for federal) window, or let ‘em all in. I prefer the latter to the former. I don’t think it’s perfect, but I don’t see how anything in between is going to be leakproof.

Number 5 will always be a problem as long as corporations and unions are allowed to contribute to politics. A strict prohibition on political donations would, I think run afoul of the First Amendment and would fall prey to the “people always find a way” axiom. What then? What if shareholders/union members were given more control over how money set aside for electioneering was spent? Would that address the problem? Or is it unworkable?

As for number 6, why not restrict foreign campaign contributions to some percentage of the taxes the entity pays to the U.S. Treasury? That idea certainly raises the specter of foreign companies “bribing” the Treasury for the privilege of donating more money. I can certainly see a scenario of quid pro quo. (I didn’t say it was a great idea.) Another alternative is banning campaign contributions from foreign entities.

Thanks for wading though this. I realize a fair amount of this falls in the vein of underdeveloped ideas. That’s sort of the point; I’m trying to flesh out my own thoughts on how these should be addressed. I’m sure some of you don’t feel some of these are even problems. Educate me. I’m open to your ideas.


(Crossposted from Say Anything)