This week marks the fifth anniversary of the McCain-Feingold campaign finance reform laws, which intended to remove corruption and the appearance of corruption in elections primarily by limiting donations and avenues of participation. The passage of the laws is about all we have to celebrate, because the much-promised — and much-needed — reforms never occurred. We've gone through one presidential election and a major midterm election with the new rules in effect, and now our nation enters quite possibly the most contentious and longest presidential campaign in history, and yet our election system remains dauntingly flawed and complex.
The 2002 Bipartisan Campaign Reform Act (BCRA) is bad legislation for many reasons, not the least of which is that it contains blatantly unconstitutional components. One such component is the ban on issue advertisements 30 days prior to a primary election or 60 days prior to a general election on television or radio by citizen groups. This law, the intent of which is clearly contradictory to the First Amendment's free speech protection, should and probably will be struck down by the U.S. Supreme Court when it decides FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, with oral arguments scheduled for April 25. This is phase one in restoring our constitutional right to free speech in the electoral process.
Yet even if First Amendment lovers score a victory from the Roberts Court this spring, it is crucial for our electoral system's integrity to press ahead against the remaining McCain-Feingold legislation. While The Reform Institute, to which Sen. John McCain is the former honorary chairman, claimed the campaign finance reform "has been enormously successful," this is, in fact, untrue. The 2002 midterm elections, the last election under the pre-BCRA regime, cost approximately $2.2 billion; the 2006 midterm elections, comparatively, cost around $2.6 billion. If legislation, intended to limit the influence of big-spending corporations and unions, is truly "enormously successful," why did the costs of the election escalate 18 percent? The legislation never had the full capability to limit money or corruption in election. It merely rerouted the money to new places in a complex web of rules and regulations.
If we want truly effective reform in accordance with the spirit of the First Amendment, our political leaders must advocate for a completely deregulated campaign finance system. Such a system will have no donation limits from any donors, will not prevent political participation based on calendar proximity to an election and will not prevent any reasonable avenue of activism for citizens and candidates. The only caveat involved is that disclosure of donations must be rigidly enforced; that is, every dollar a candidate or organization receives must be accessible in real-time on the Internet. A strengthened Federal Elections Commission must be granted real teeth to prosecute offenders of disclosure laws. Former Supreme Court Justice Louis Brandeis was correct when he stated, "Sunshine is the best disinfectant."
This deregulated system of campaign finance is not only the simplest approach to campaign finance reform (Who really understands all the exemptions, limits and restrictions in the current system?), but it is our best hope for reducing corruption the right way. Between the 24-hour news coverage of CNN, Fox News and online political blogs, there are plenty of willing investigators to expose candidates who appear to be unduly influenced by large donors. Voters can then consider this appearance of corruption in their vote just like any other factor, and if they ignore unethical behavior when electing someone, that's the prerogative of a democratic society. This has the mitigating effect in elections of changing the question from "Which candidates follow the rules?" to "Which candidates have integrity and independence?"
By ensuring more avenues to political participation and more public accountability in campaigns, a deregulated approach is far more desirable than the serpentine and oftentimes arbitrary McCain-Feingold legislation in reducing corruption. In a nation built on the idea of individual freedom of choice, what better way is there to uphold that idea than by reviving individual choice to a greater degree in the election cycle? As National Journal writer Jonathan Rauch said, "Let candidates do what they want and take their chances with the voters." After five years of McCain-Feingold, it's time to put the responsibility back in the hands of the voters.
Will Smith ([email protected]) is a freshman majoring in political science and religious studies.
