law usurps the collective wisdom of the 50 state legislatures by
arrogantly regulating how state and local elections may be conducted."
Campaigns, Democracy Are Compatible
By Senator Mitch McConnell
As the outrage lobby, a.k.a the campaign finance reform industry,
continues its hype and hyperbole, I am reminded of that infamous
quote from the House Democratic leader, Dick Gephardt (Mo.), on
this very issue: "What we have is two important values in direct
conflict: freedom of speech and our desire for healthy campaigns
in a healthy democracy. You can't have both."
To the contrary, the free exercise of the rights protected by our
forefathers is the cornerstone of the success of our society. Protection
of our fundamental rights is precisely the reason I have been joined
in my court challenge (McConnell v. FEC) by over 80 co-plaintiffs
spanning the ideological spectrum to challenge the greatest assault
on the freedom of speech in our democracy: the "Bipartisan Campaign
Reform Act of 2002." From the AFL-CIO, the American Civil Liberties
Union and the California Democratic Party to the National Rifle
Association and the Republican National Committee, we are all committed
to defend the freedom of political expression. Our legal representation
is equally as diverse from Floyd Abrams and Stanford Law
School's Dean Kathleen Sullivan to Judge Ken Starr, the brightest
legal minds in America are leading the charge. The new law, which
is set to pounce on our fundamental freedoms come Nov. 6, continues
to be misrepresented by reformers in what it does and what it does
not do. Contrary to the assertions of the reform crowd, the law
does not eliminate soft money. Only the fully disclosed soft money
donated to national parties has been outlawed. At the same time,
the reform cartel bestowed most-favored nation status upon outside
special-interest soft money expressly allowing federal candidates
and officeholders to raise unlimited, unregulated and undisclosed
soft money to fill their coffers. Not surprisingly, this 11th hour
sellout has received little attention in the media, who instead
parrot the reformers' spin. The reform motto for senators and congressmen
will thus become: "Ask not what you can do for your political party;
ask what you can do for an outside special-interest group."
What the law does is tell every federal candidate and officeholder
when, where, how, and to whom he or she may speak. Simultaneously,
the law blankets state and local candidates and parties, as well
as citizens and citizen groups, with a haphazard web of speech restrictions.
In doing so, the law usurps the collective wisdom of the 50 state
legislatures by arrogantly regulating how state and local elections
may be conducted. A greater attack on federalism is hard to imagine.
Another example of the inherent inequity of this law is that minors,
those 17 and younger, are prohibited from donating to federal candidates
and parties but they are free to contribute to federal political
action committees (PACs). For some unexplained reason, a "minor"
cannot contribute to a House candidate or a national party, but
they are free to give to a senator's leadership PAC or EMILY's List.
Yet another special-interest sop.
Further, if you dare express your opinion on TV or radio, the new
law forces you to speak your mind more than 30 days before a primary
election or 60 days before a general election unless, yet
again, you are a "chosen one." Even then you have to check in with
the federal government first. With the presidential primary season
extending for nearly six months, there will be a rolling blackout
of political expression as states across this nation hold their
elections. Curiously, the prohibition leaves unscathed advertising
via newspapers and billboards. Once again, protection for some and
prohibition for others.
The patchwork manner in which this law was cobbled together has
led to much confusion, even among those tasked with clarifying and
enforcing it. It took the Federal Election Commission (FEC) more
than 300 pages to try and clarify only three of 38 sections of the
law. Incensed by the FEC's action, the outraged lobby has vowed
to strike back by taking a wrecking ball to the FEC and replacing
bipartisan commissioners with J. Edgar Harshbarger.
It is an astonishing act of hypocrisy for reformers to allow federal
candidates and officeholders to raise unlimited soft money for outside
special interests, unlimited for those groups alone, and then mount
a crusade to eviscerate the FEC for making it possible for members
of Congress to participate in their state parties' fundraising events.
Over the years I have been proud to lead the defense of the Constitution
in Congress. That battle has now shifted to the courts and
I am determined to restore to all Americans those rights that were
taken from them this year. Fortunately, enforcement of our constitutional
rights is the exclusive province of the judiciary. Lawyers and plaintiffs
from the right and left stand united to protect the freedom of expression
in America. Contrary to the wrong-headed assertions of some in Congress,
healthy campaigns and a healthy democracy are not in conflict with
the First Amendment, but contingent upon it.
States Senator Mitch McConnell is a Republican from Kentucky, and
the lead plaintiff on the lawsuit challenging the constitutionality
of the Bipartisan Campaign Reform Act (BCRA). This article originally
appeared in The Hill
on July 24, 2002.
August 1, 2002]