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Repeal and Replace McCain-Feingold
The Bipartisan Campaign Reform Act of 2002 (aka, McCain-Feingold) was signed into law by President George W. Bush on March 27, 2002. The high-minded intent of this legislation was ostensibly to get “big money” out of campaign financing, but as history has unfurled in the wake of this legislation we’ve once again had the opportunity to re-learn that oldest of conservative lessons:
No public policy has solely positive or negative consequences, merely tradeoffs.
The unintended consequences of the BRCA have become ever more obvious and difficult to ignore over time. The result of its passage — and subsequent argumentation at the Supreme Court — has been to endorse the BRCA’s limitations on “soft money” donations to the parties while allowing basically unlimited donations to so-called 527 groups so long as their advocacy is not directly in support of any particular candidate.
While most conservatives applauded the outcome in Citizens United v. FEC if only for its strictly partisan implications, the practical effect of that decision was to ratify the idea that if you wanted to get something done in terms of issue advocacy on the national level, the only practical option available to you would be to go around the Parties. Of course, Conservatives also applauded the decision due to its affirmation of the fact that a person of means or a group of interested parties could band together to make their voices heard. It also recognized the reality that “money = speech” in a nation where purchasing advertising in the mass media is one of the most effective means of reaching large numbers of people.
But even this recognition of the First Amendment’s obvious implications when it comes to political speech has created casualties; ironically, those casualties are the national political parties themselves. The BRCA largely stripped the ability of the parties to direct sums of money to candidates. The Parties can receive unlimited soft money for issue advocacy and voter registration, but donations to candidates must come in the form of “Hard Money,” which has a $2,500/campaign limit per individual per election.
This relatively low contribution ceiling puts a serious crimp in any candidate’s attempt to make an impact in national or even statewide elections, forcing candidates to use other vehicles (such as Political Action Committees) to help fund their campaign apparatus … at the cost of not being allowed to coordinate with the Parties themselves. That is unless you are a self-funding candidate, in which case you may coordinate. But only under the light of a full moon. While hogtied in the trunk of a Yugo with Vanna White during Mardi Gras on Bourbon Street amidst an earthquake…
This could go on all day. Most campaign finance law is a tangled skein whose headline intent is to prevent bribery and collusion but whose bottom line is to form a sort of pillow-fort of legalism around incumbency, while making it impossible for the Parties themselves to govern who chooses to run under their banner and with or without their sanction.
We’re seeing the consequences of this playing out now in the Democrat primary, where an elderly coot who only became a Democrat five minutes ago so he could try to win that nomination against a fractured field is the presumptive frontrunner against another elderly coot whose personal fortune has allowed him to buy his way onto the party’s national debate stage. The second coot once won the Mayorship of America’s largest city … as a Republican.
We’ve gotten to this place where people only use our institutions as platforms for their own aggrandizement by starving the parties of their ability to have any discretion whatsoever about who will represent them. To that end, the best solution would seem to be to remove the hobbles from them. That means repealing McCain-Feingold, and replacing it with one simple rule: There are no limits on soft money donations to political parties, but individual donors who give in excess of $10,000 per election cycle shall be made public by the recipient Party, along with the size of their gift.
What, you didn’t think I want them turned loose completely, did you?
This continued outsourcing of campaign spending that we all know is happening anyways in a different guise has led us to a place where various populists and super-rich egomaniacs are doing this to the Democrat party:
1. Identify a respected institution.
2. kill it.
3. gut it.
4. wear its carcass as a skin suit, while demanding respect.#lefties— David Burge (@iowahawkblog) November 10, 2015
Make no mistake; I have no sympathy for the Democrats and the fix that they’re in. They have willingly asked — nay, begged — for this outcome for far too long. But if we as conservatives want to ensure that our party doesn’t end up being hijacked and paraded around as a macabre trophy by the next demagogue to come along, we should think very hard about advocating for a return to institutional power.
Published in Elections
The law of unintended consequences once more rears its head with legislation that has not been carefully thought out.
Repeal
and ReplaceMcCain-FeingoldKinda ironic McCain-Feingold probably led to Trump becoming president.
Yes – and I wonder if anybody has thought to find Russ Feingold and ask him why?
I’d be fine with this outcome as well; I do think that making some effort at letting sunshine in on who is making large donations is smart, though.
I used to be a fan of “no restrictions, just full disclosure”, until I saw what happened to people who donated to prop 8 in California.
unfortunately, political full disclosure is incompatible with cancel culture.
Maj, great post.
I want to make sure that I understand your proposal. Would you repeal all campaign finance limitations, or just the limitations applicable to parties? As stated, it appears that your proposal to require disclosure of contributions over $10,000 would apply only to parties.
Would there be any limit, or disclosure requirement, applicable to contributions to specific campaigns, or to political organizations other than parties?
I generally like your proposal, by the way.
My preference would be for the dollars to flow through the parties with appropriate disclosure, because individual donations of unlimited size to candidates are in some sense indistinguishable from bribes.
The Parties themselves are already more than accustomed to interfacing with the FEC and certain restrictions such as the ban on foreign donations seem sensible as well.
The point is to try and return a modicum of institutional control over this stuff back to where it should be: at the local, state and even national party levels.
I understand that at times such machines can block access to potential candidates who might have the opportunity to win a given election, but the preponderance of the evidence seems to indicate that it would do more to prevent obvious disasters like the Roy Moore/Christine O’Donnell flaps.
At some point we’re going to need to sack up and shoulder our way through the cancel mobs, don’t you think?
The paradoxical effect of cancel culture is to create or call into being a set of shameless or unembarrassable candidates. Allow me to point out as well that anybody who is donating >$9,999 to a political party probably doesn’t have to be concerned with cancel mobs.
CEO of Mozilla/Firefox?
I don’t like what happened to Brendan Eich.
But what happened to him was a function of a corporate culture which bowed to these bullies too soon. Did you hear that JK Rowling is canceled as well? Maybe not, because she simply shrugged off the mob.
More of that is going to be necessary in the future or we’re going to be held hostage in perpetuity for holding completely anodyne views.
I don’t like the idea of prohibiting contributions to individual campaigns. This might be solved if the contribution could be made to the party, but earmarked for a particular campaign.
I also don’t like the idea of freezing out candidates like Moore or O’Donnell. They were certainly flawed, though my personal impression is that the allegations against Moore were quite weak. However, it’s important for a mechanism to exist to challenge the establishment-types.
I wouldn’t like a system with different rules for different folks.
This seems like an inevitable consequence of my proposal, honestly. What it will require is relationships and coalition building within local and state parties between candidates, precinct captains and the like.
What it will prevent is people sailing in on a giant pillow of money, buying up a bunch of fake infrastructure and hijacking the party for their own purposes. This proposal is inherently biased towards those who have spent the time to build local and regional alliances, admittedly.
And yes: The Roy Moore problem weighs heavily on my mind. The smoke-filled room is much derided, but my bias is towards winning and not the abstract ideological purity tests some primaries devolve into.
I would like the millionaires and billionaires to be able to give money to others who are actually qualified to hold office, instead of running for office themselves.
Thank you for your sincere confession. A sincere confession mitigates the sentence.