The Senate's passage of McCain-Feingold was
welcome if only as a comeuppance to the Trent Lotts and Mitch
McConnells who had arrogantly defied popular sentiment by keeping the
bill under wraps for six years. There were several factors that made
the time right for McFein--including a strategic calculation by the
parties that they had reached soft-money parity--but paramount among
them was the prevailing climate of popular disgust with the sale of
the government to the highest bidder. For this the interest groups
that helped raise public consciousness with a steady flow of
statistics and gamy anecdotes about the American way of bribery and
extortion deserve great credit. Even George Bush has mumbled that he
would sign a campaign finance reform bill, which doesn't say much for
present legislative efforts but is a tribute to the critical mass
reached by pro-reform sentiment in the country.
that the Senate was even able to debate the bill seemed a freshet of
democracy released by a spring thaw. Once the threat of filibuster
and suppression by the leadership was lifted, a feisty debate bloomed
on the floor. During the colloquy ending in the 60-40 rejection of
one "compromise" that would have repealed a 1907 law banning direct
contributions from corporations, some of the fiercest denunciations
of corporate influence were heard since, well, 1907. Although Paul
Wellstone's amendment to allow states to apply public financing
systems to their own federal office races failed, it drew the support
of thirty-six senators and more than seventy major groups--labor,enviro, black, Latino, religious.
But let's not get carried
away. The bill that finally passed does little to alter a system
pushed to the brink of plutocracy by the obscene power of money (note
Bush's tax cut, incorporated in the budget bill the Senate next took
up, so blatantly weighted toward his wealthy supporters). And it bore
little resemblance to the measure John McCain and Russ Feingold
originally proposed, which promised a ban on unregulated soft money
and "bundling" (whereby givers maximize their influence by pooling
their contributions), limits on spending by candidates and political
action committees and provisions for free TV time.
struggle to win Republican co-sponsors cost the bill all these
reforms save the soft-money ban. But coming off a 2000 campaign that
saw an unregulated $500 million flush through the political process,
the passage of that ban was a meaningful achievement. Not nearly so
meaningful, however, as it would have been in combination with the
original McCain-Feingold reforms, and even less meaningful after a
final round of compromises doubled "hard money" contribution limits
for individuals from $1,000 to $2,000, increased the amount
individuals can donate to candidates and parties during an election
cycle from $25,000 to $37,500 and limited communication between
advocacy groups and campaigns so much that the bill could be read to
restrict legitimate public-interest lobbying.
"poison pills" proved too much to swallow for former McCain-Feingold
backers at Public Campaign, the US Public Interest Research Group and
the Alliance for Justice. Representative Jesse Jackson Jr.
complained, "When you talk to people I represent about campaign
finance reform, the first thing that comes to mind is not doubling
the amount wealthy donors can give to campaigns."
and others can raise questions about the compromises that warped the
Senate bill when the House finally debates its version of McFein, but
they'll have a hard time making themselves heard in a body under the
iron thumb of Tom DeLay, poster boy for everything that's corrupt
about the current system. Also, Democratic leaders are having qualms,
fearing that the GOP advantage in hard-money raising may kill their
chances of financing a winning take-back-the-House-drive in '02. Even
if a bill passes, it could be defanged in conference committee,
giving Bush the innocuous bill he really wants to sign. And beyond
that stretch inevitable court challenges.
keep the heat on Congress with a new focus on the hard money system
that constitutes the vast bulk of all campaign dollars. They should
also understand that the real action will continue to be in the
states, where "clean money" bills, which contain the true and only
solution--full public financing of campaigns--are proliferating. Such
laws have already been adopted by Arizona, Maine, Massachusetts
(though statehouse Dems are shamefully trying to eviscerate the law)
and Vermont, and drives to pass them are now under way in
Connecticut, Minnesota, North Carolina and Wisconsin--and
municipalities like Austin, Texas. Americans are well aware that
their system is sick, and the Senate debate over McCain-Feingold has
left them more open than ever to the heroic remedies needed to cure
US Senator Russ Feingold, the Wisconsin Democratic side of the McCain-Feingold juggernaut that is on the verge of winning Senate approval of the most significant campaign finance reform initiative
The corporate class is flying high in Washington. With George W. Bush--CEO style and all--in the White House and the Republicans controlling Congress, the business community has been exploiting its enhanced clout. Workplace safety rules, ten years in the making and designed to prevent a million or so injuries a year, were scrapped in a few hours of Congressional action. A signal was sent: We Are Business. Hear Us Roar. At the same time, House Republicans rammed through the central provision of Bush's tax cut for the rich. And in another early action, the House approved a bankruptcy bill that favors creditors, among them MBNA America Bank, one of the largest issuers of credit cards and--coincidence? ha!--one of the largest corporate donors to Bush and the GOP in the election. But surely the most egregious display of corporate power was Bush's decision to reverse a campaign pledge to seek reductions in the carbon dioxide emissions of the nation's power plants after the coal and oil industries objected. Congressman Henry Waxman rightly called the move a "breathtaking betrayal" of Bush's promise to fight global warming.
All this activity has emboldened corporate lobbyists to plan other assaults. They want to rewrite privacy rules regarding medical records, beat back environmental and land-use regulations, open Alaska's Arctic National Wildlife Refuge to oil drilling, limit corporate liability for dangerous products, deep-six the federal lawsuit against the tobacco industry and undo the Clinton ban on road-building in 60 million acres of national forest. And don't forget tax breaks. Bush told the K Streeters who eyed the Bush tax package for special-interest tax breaks to keep their mitts off. But there's a tacit deal in the air. If the corporate crowd helps Bush win his tax cut this year, next year he'll help them get theirs.
None of this is a surprise. Bush and the Republicans are merely following the law of supply and demand: Donors supply campaign money, then they demand. Bush set records in terms of pocketing corporate donations, and Congressional Republicans--particularly those in the House under the leadership of majority whip Tom DeLay--have perfected the pay-to-play, in which they hit up the business community for campaign cash and then allow its representatives to participate in drafting legislation.
Which brings us to campaign finance reform. The Senate is poised to consider the McCain-Feingold bill, a modest initiative that would ban federal soft-money contributions and at least inconvenience the high rollers. Yet some Democrats are skittish, realizing that their party has become as dependent on soft money as the GOP. And labor is nervous about a provision that would limit issue ads. Regardless of the outcome of this debate, we need extensive reform going beyond McCain-Feingold, along with a fight-back on the GOP initiatives. Opposition to those initiatives does exist, including a coalition of 500 organizations working to combat the Bush tax cut. That, plus a spirited grassroots effort, could stop the Bush agenda while pushing progressive alternatives.
We learned a few things from Dan Burton's hearings into the Clinton pardons. We learned that Bill Clinton's pardon of billionaire expatriate Marc Rich was no last-minute rush job. According to testimony by White House aides and lawyers, Rich's pardon application was the subject of multiple White House meetings over a span of weeks, with White House lawyers opposing clemency for Rich every step of the way. Clinton, always his own worst enemy, alone assented to the lobbying efforts of Rich lawyer and former White House counsel Jack Quinn.
We also learned that Burton, while filling a few nights' bandwidth on the scandal-dependent cable news channels, would evade every attempt to place the pardon controversy in perspective, rejecting repeated requests by Democrats to call witnesses and solicit evidence on pardons past. This is not to make excuses for Bill Clinton, but Burton's refusal to examine past abuses of the presidential pardon starkly reveals an inquiry called merely to humiliate and punish a political enemy and those who worked for him, rather than to explore policy questions.
If Congress were serious, these hearings would necessarily address pardons by Clinton's predecessors, starting with Bush the First. Poppy Bush's pardons of Caspar Weinberger and other Iran/contra felons have been widely discussed but still deserve closer scrutiny: Not only did Weinberger & Co. break federal laws, abuse high office and deceive Congress; their pardons gave every appearance of protecting Bush himself from investigation. Then there is Armand Hammer, who in 1989 gave $100,000 to the Republican Party and another $100,000 to the Bush-Quayle Inaugural Committee just weeks before Bush pardoned him for illegal campaign contributions. And now comes Time.com's special report on Bush's last-minute pardon of Edwin Cox Jr. for bank fraud after James Baker wrote a note to the White House counsel, with a copy to Bush, describing Cox's father as "a longtime supporter of the President's." The elder Cox later pledged at least $100,000 to the Bush presidential library. CNN followed up with a report that the Cox family was a substantial contributor to the Bush family's campaigns and the GOP, including $31,500 to George W. Bush's gubernatorial and presidential campaigns.
The point is that Clinton's pardons of Rich et al. are scarcely unique outrages. Clinton exercised his unreviewable pardon power in ways that reveal much about his character but provide no hint of illegality. So what is the purpose of further hearings, beyond retribution? Surely not some constitutional amendment aimed at curtailing presidential pardons, which despite the abuses by both Clinton and his predecessors remain the only tool for a courageous executive to correct a serious injustice (a category for which a few of Clinton's pardons qualify).
The Clinton pardon fiasco does raise some important issues. Quinn invented a giant loophole in the law barring revolving-door influence-peddling in order to lobby his former boss. And cash for clemency remains an outrage whether it's about Marc Rich or Armand Hammer. But such pardons are scandalous in the same way that Congressional legislation friendly to corporate donors is scandalous. The pardon flap matters primarily because it further erodes public confidence that anything in our constitutional democracy can survive the polluting power of big-money donations.
Future Marc Rich-type pardons can be cured only by radical campaign finance reform--a far cry from the partisan dart-throwing on display in Dan Burton's hearing room.
The emerging fight over the McCain-Feingold campaign finance bill, which Senator John McCain has promised to bring up right after George W. Bush's installation as President, has little, if anything, to do with real reform. Rather, this is primarily an intraparty scrap over who will define the early days of Bush's term--Bush and Senate Republican leaders or the maverick McCain with Democrats in tow--and who will determine the new parameters of "bipartisanship." McCain needs sixty votes to stop the traditional filibuster by Republican leaders Trent Lott and Mitch McConnell, and with the turnover in the Senate, the Democratic gain of four seats and the conversion of Mississippi Republican Thad Cochran to the cause, McCain may now have them. But the Republicans may well try, with the witting or unwitting help of a few Democrats, to pass a toad and call it a prince.
The McCain-Feingold bill would do some worthwhile things. It would end the flow of unregulated soft money into national party coffers, codify the Supreme Court's Beck decision pertaining to the use of union dues for political purposes (which organized labor accepts, since it affects only a small number of nonunion members--those who pay dues for certain services and will be allowed to opt out of paying the portion spent on politics) and would possibly include a friendly provision offered by moderate Republicans to restrict how corporations and unions can spend money on political ads aired during the final months of election campaigns. Some Republicans may favor the bill because the Democratic Party is now almost even in the soft-money race. But nothing in it would end the money chase that keeps many good people from running for office; nor would it put a real dent in the process of influence-peddling that defines day-to-day life in Washington. Even at an estimated $457 million in 2000, soft money, the subject of so many New York Times editorials, amounted to only about 16 percent of the roughly $3 billion raised for this year's national auctions--ahem--elections. That's a big jump over the $265 million in soft money raised in 1996 but not much of a change compared with the $2.2 billion raised overall that year.
Feingold is a decent man who courageously called on his own party last summer at its Los Angeles convention to stop unilaterally the outrageous fundraising that goes on at those events. He understands the limits of his bill and is on record firmly supporting full public financing of campaigns, as is now done in Clean Elections states like Maine, Arizona, Vermont and (starting this spring) Massachusetts. McCain, on the other hand, is an excitable right-winger who has ridden the finance issue to unexpected stature. He's a far from reliable ally of reform groups, who are hungry to make some headway against the growing corruption of the electoral process by big money. And there lies the danger.
In order to pass a bill that Bush might sign, McCain has signaled that he may accept, in exchange for a soft-money ban, amendments that would allow an increase, possibly even a tripling, of the limits on hard money an individual may donate. Lots of incumbents--Democrats and Republicans alike--secretly like this devil's bargain, because they think it would make it easier to raise the hard dollars they so desperately need for their campaigns. They also argue, irrelevantly, that inflation has reduced the value of a $1,000 contribution, the limit set in 1974, to $300. The Supreme Court disposed of this argument a year ago, in Nixon v. Shrink, when it upheld even lower limits as a way to prevent electoral corruption, pointedly stating that "the dictates of the First Amendment are not mere functions of the Consumer Price Index."
An increase in the hard-money limits would certainly encourage "buy-partisanship"--the process by which wealthy donors buy one party and get the other free. Fewer than 121,000 people gave $1,000 or more to a winning federal candidate in the 2000 elections, less than 0.05 percent of the population. Tripling the amount they could give would further empower this narrow slice of America, which is disproportionately wealthy, white and male. It could also increase the gap between the business and labor contributions to a whopping billion dollars. Two leading reform groups, Public Campaign and US PIRG, are against any such trade-off, but others, like the business-driven Committee for Economic Development, are for it, with Common Cause somewhere in between. Labor and civil rights groups, their attention focused on Bush's Cabinet nominees, should take heed. The passage of a straightforward soft-money ban would be a good thing--and we'd like to see Congress look seriously at the Clean Election reforms taking root in the states. But this new Congress may try to pass a bad bill, call it reform and hope no one hears the protests.
As the media obsessed over the seesaw presidential poll, voters across the country quietly made their choices on more than 200 disparate ballot measures and initiatives. For progressives the results are--as usual--mixed.
First the bad news: Three campaign finance reform initiatives went the wrong way. Clean-money measures providing for full public financing were thumped in Missouri and Oregon. Similar measures had been passed in previous years by voters in Maine, Massachusetts and Arizona as well as by the legislature in Vermont--but this time around powerful, well-financed business lobbies weighed in, and dirty money beat clean money. In Oregon opponents ran an effective (and expensive) radio campaign highlighting the out-of-state financial support for the reform, and it raised the specter of extremists running for office if it passed.
In Missouri corporate opponents--including Anheuser-Busch, KC Power & Light, Hallmark Cards and the Missouri Association of Realtors--poured hundreds of thousands into their victorious antireform campaign. Californians, meanwhile, approved Proposition 34, billed as campaign reform but actually cooked up by the establishment to block real reform. The returns on these three measures should compel campaign finance reform activists to rethink their strategies. These are significant and stinging defeats.
The good news is that the failed drug war was a loser in five of seven related measures nationwide. Medical marijuana initiatives passed in Colorado and Nevada (although a full marijuana-legalization bill failed in Alaska). Oregon and Utah voted to reform draconian drug forfeiture laws. And in California, Proposition 36, providing treatment instead of jail for first- and second-time drug offenders, passed easily. But a similar proposition failed in Massachusetts (which also refused to approve a universal healthcare proposal).
Another bright spot was public education. Voucher measures in California and Michigan were beaten by wide margins. Silicon Valley entrepreneur Tim Draper put up millions for the California proposal--to no avail. California voters also approved a measure that makes passage of school bonds easier. But bilingual education, banned in the Golden State two years ago, was also thrown out by Arizona voters. As he did in California, businessman Ron Unz fathered and funded the Arizona measure.
Colorado voters defeated the so-called informed consent measure on abortion, but Arizona and Nebraska approved a ban on same-sex marriages and civil unions. In Maine a measure to protect gays from discrimination was defeated. In Oregon the notorious Measure 9, which outlaws "teaching" homosexuality in schools, failed. Oregonians also rejected two antiunion "paycheck protection" measures, which the state labor federation had vigorously fought.
In Michigan, it's a battle over school vouchers. In Alaska the fight is over medical marijuana. Nebraskans are being asked to outlaw civil unions. In Colorado, Amendment 25 would impose a twenty-four-hour waiting period and antiabortion propaganda on women wanting to terminate a pregnancy. These are just a few of the dozens of state initiatives and ballot measures that voters will face on November 7.
The overwhelming majority of them are in the Mountain West and on the Pacific Coast--and most are rollbacks led by conservatives. "There are some good progressive initiatives," says Amy Pritchard of the Ballot Initiative Strategy Center. "But progressives are mostly on the defensive." Because initiatives generally don't get the same attention that candidates do, voters tend not to focus on them until the last minute, if they focus at all, making outcomes hard to predict.
Once again California is the bloodiest and costliest of ballot- initiative battlegrounds. As much as $50 million is being spent by both sides on Proposition 38, which would widely introduce school vouchers. Silicon Valley multimillionaire Tim Draper is bankrolling the pro-voucher forces, but stiff opposition from teachers' unions and elected officials seems to be dominating. (A similar plan in Michigan could win, however.)
A similarly salutary role was not played by many of these same officials on another California measure. Cooked up by the bipartisan political establishment, Prop 34 would short-circuit real campaign finance reform by enacting a measure that is a reform in name only. In San Francisco, a creative Proposition L would close legal loopholes that allow dot-coms and other gentrifiers to turn low-income residential and industrial neighborhoods into gilded offices and condo villages. Prop 36, a measure that would reverse the logic of the failed drug war by substituting treatment for incarceration of nonviolent users, seems to be gaining the upper hand, with substantial support from several groups backed by financier George Soros. Opposition to the measure ranges from prosecutors to the otherwise liberal actor Martin Sheen.
Alaskans appear to be poised to approve a cannabis decriminalization law that would also grant pardons to people convicted under state marijuana laws and make them eligible for restitution. Nevadans, too, will be voting on whether to approve medical marijuana--as well as whether to ban gay marriage. In Arkansas and Massachusetts, conservatives are championing antitax initiatives.
Oregon's menu of twenty-six ballot measures is a nightmare for progressives. The militantly antigay Oregon Citizens Alliance has collected more than $170,000 to promote Measure 9, which would ban public schools from teaching anything that promotes or sanctions homosexuality, but opponents have raised about six times that amount. Meanwhile, progressives are also having to spend resources to oppose measures 92 and 98, which would restrict the ability of unions to collect money to use for political purposes from more than 200,000 unionized workers.
The good news from the Northwest is that Oregon is one of two states (Missouri is the other) where voters have a chance to approve clean-money campaign finance reforms. In the past few years, four states--Maine, Vermont, Massachusetts and Arizona--have approved such laws. In each, the special-interest-funded opposition barely put in a showing, but that has changed. "We have always been David and the other side the Goliaths," says Public Campaign executive director Nick Nyhart. "In the past Goliath never came to play. Now he's out in force."
An Oregon radio campaign tries to tar the reformers as fronts for eco-terrorists and neo-Nazis. In Missouri, corporate opponents are threatening to spend $2 million to defeat the measure; to date Anheuser-Busch has led the charge with a $25,000 contribution, followed closely by KC Power & Light, Hallmark and the Missouri Association of Realtors. "It's crucial that these two measures pass," says Nyhart. "Clean money is an idea that has been winning, and we don't want to lose the momentum." In both states, the battle is tight and likely to go down to the wire. (Readers who wish to contribute can contact Missouri Voters for Fair Elections at 314-531-9630 and the Oregon Campaign for Political Accountability at 503-796-1099.)
Democrats weren't the only ones who benefited from knowing wealthy Asians.
In campaign speeches George W. Bush repeats Al Gore's defense of his 1996 campaign fundraising phone calls from his government office--"there is no controlling legal authority"--so often that it's become a stock line in Bush's stump remarks. Attorney General Janet Reno's recent refusal of Republican requests to refer Gore's alleged violation of federal law to an independent counsel gave the GOP an opening to heap even more verbal abuse on Gore. Gore's words, spoken at a press conference three years ago, although including a phrase common enough among lawyers, were widely perceived at the time as defensive or evasive. His use of the phrase was judged by many commentators to have been a political mistake of the first order.
Ironically, it was also a legal mistake. There was and is "controlling legal authority" that actually favors Gore: It is the Constitution of the United States. The law he allegedly violated--Section 607 of the US Criminal Code--would very likely be found unconstitutional if it was ever tested in court.
Section 607 makes it a felony "for any person to solicit or receive any contribution...in any room or building occupied in the discharge of official duties." Attorney General Reno determined that Section 607 covers only "hard money" campaign contributions. Gore testified that he believed that the sums he was soliciting were "soft money." Thus, Reno concluded there was nothing to prosecute and no reason to appoint a special prosecutor.
But Reno's narrow technical explanation for exonerating Gore did not dispel, and may have compounded, the fallout from the "no controlling authority" rationale. A compelling constitutional authority is a much firmer vindication.
The constitutional failing of Section 607 is that it does not require proof of criminal intent. Section 607 says "any person who violates this section shall be fined under this title or imprisoned not more than three years, or both." The three-year maximum sentence makes every violation of Section 607 a felony--even when those involved had unintentionally failed to comply with the law's technical requirements. The Federal Criminal Code (like that of most states) defines a felony to include any offense punishable by imprisonment of more than a year. Every felony is also an "infamous crime" as that term is used in the Constitution. (The Fifth Amendment guarantees that no person may be prosecuted for an "infamous crime" unless a grand jury votes to charge him in an indictment.)
The concept of a felony that does not require criminal intent is jarring to every law school graduate who studied Justice Robert Jackson's classic opinion in the Supreme Court case Morissette v. United States (1952). In his ruling, Jackson traces back to Blackstone's famous eighteenth-century book of Commentaries the Anglo-American concept that a crime requires a "vicious will" in addition to a prohibited act. Jackson states the governing principle this way: "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."
Applying this principle, the Supreme Court threw out the conviction of Morissette, who had been found guilty of the crime of "converting" (i.e., stealing) government property because he had taken and sold some rusty and apparently abandoned bomb casings that were lying around the grounds of a military bombing range. The Court roundly rejected the trial judge's instruction to jurors that Morissette's belief that the casings had been abandoned by the government was no defense against the criminal charge of stealing government property. The Supreme Court ruled that proof of a criminal intent on Morissette's part was required to convict him of being a thief.
The due process clause of the Fifth Amendment was designed to preserve the fundamental principles of fairness that the Anglo-American legal tradition recognized in Thomas Jefferson's time. The lawyers who framed, adopted and ratified the due process guarantee of the Bill of Rights were steeped in the study of Blackstone and would surely have considered a requirement to prove criminal intent for an infamous crime a fundamental principle of Anglo-American jurisprudence, a part of the "due process of law" that their Bill of Rights guaranteed.
The due process clause, along with Blackstone's Commentaries and cases such as Morissette, thus provides "controlling legal authority" that should protect the Vice President, or any other officeholder or citizen, from being prosecuted under the felony-without-fault provisions of Section 607. The Vice President and the nation would have been better served had the Attorney General recognized this as a controlling basis for denying the requests for an independent counsel--and had she done so three years ago, before Gore invoked the infelicitous phrase that there is "no controlling legal authority."
At stake is whether the twenty-first-century First Amendment will be a protector of the powerful or a resource for the weak and disfranchised.