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"...the law usurps the collective wisdom of the 50 state legislatures by arrogantly regulating how state and local elections may be conducted."



Healthy 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.

United 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.

[Posted August 1, 2002]