The Washington Post
Wednesday, April 11, 2001; Page A27

Prohibition Is Back

By Robert J. Samuelson

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

-- The First Amendment

"Campaign finance reform" is the modern Prohibition: a misguided moral crusade that, though doomed to fail, infuses its supporters with an overwhelming sense of moral superiority. We are (they say) cleansing politics from the influence of "dirty" money. This moral smugness is entirely unfounded, because the advocates of "reform" have consistently avoided the only honest way of curbing the role of money in politics. That would be to amend the Constitution.

All "campaign finance reform" collides with the First Amendment, whose language is clear. The effort to deny this conflict produces campaign finance laws and regulations that restrict free speech -- flouting the First Amendment's spirit -- without imposing binding limits on campaign contributions or spending. We have the worst of both worlds. The McCain-Feingold bill, recently passed by the Senate, would perpetuate this dubious tradition.

If it becomes law, it will be evaded -- just how will depend on which parts the courts might find unconstitutional. McCain-Feingold would ban "soft money" contributions to national parties and their political committees (such as the Republican and Democratic national committees). So more money may be channeled through nonparty groups -- from the Sierra Club to the Chamber of Commerce -- that will finance election activities for candidates they favor. Or we may see the rise of "shadow" political parties. If you can't make "soft money" contributions to the Democratic National Committee, you might make them to, say, a Committee to Elect a Democratic Congress (which would deny any formal party affiliation).

Because these evasions are so obvious, McCain-Feingold tries to check them by restricting the election activities of nonparty advocacy groups. Most of Title II's 19 pages are devoted to various restrictions on the "electioneering communications" of nonparty groups. In the 60 days before an election, these groups couldn't run TV ads that referred "to a clearly identified candidate for federal office." Title II assumes that "electioneering communications" aren't free speech.

Given the shakiness of this assumption, courts may declare some or all of Title II unconstitutional. But if they don't, its restrictions will (of course) be evaded. Though it would restrict election ads made over radio, TV, cable or satellite, McCain-Feingold would place no limits on direct mail, phone banks or newspaper and magazine ads. Naturally, advocacy groups would resort more to these. Similarly, the restrictions on TV ads would apply only to incorporated advocacy groups. Wealthy individuals -- the likes of Steven Spielberg -- might run TV ads in the 60 days before elections.

In the 1920s, Prohibition's supporters regarded drink as a wellspring of evil. Now, money in politics is portrayed as a similar cesspool. Campaign contributions, it's said, aren't free speech; they're just money. The trouble is that, in an electronic age, political speech usually requires money. You can talk to me on the sidewalk for free. But you can't communicate with a mass audienc