The Spirit of Reform

President Bush signed the campaign finance reform bill last week without ceremony. None of the sponsors were clustered around his desk, no commemorative pens were handed out.

It seems an odd way for landmark legislation to become law, especially legislation that took seven years to enact, that produced the most bitter congressional battle since the civil rights era and that was repeatedly declared dead. Most landmark legislation does not become law, however, with opponents still itching for a fight.

The noisiest fight will be in the courts. Sen. Mitch McConnell, the Kentucky Republican who is reform’s most staunch opponent, has assembled a dream team of lawyers to challenge the law. Led by former Whitewater independent counsel, the challenge largely will focus upon First Amendment issues and is destined to find its way to the Supreme Court.

Team McConnell says many provisions in the law – including Sen. Olympia Snowe’s curb on candidate-specific attack ads by corporations and unions within 60 days of an election – are blatant infringements on free speech the courts are certain to reject. Team Reform counters with the assurance that the legislation was crafted with close attention paid to past Supreme Court decisions ratifying Congress’ right to regulate political money. This law, they say, does not blaze new trails; it merely refines what already exists.

Whatever the outcome, this high-profile battle over constitutionality will be brief; the McConnell lawsuit is on a very fast track. The long struggle will be bureaucratic in nature, a war for the hearts and minds of the Federal Election Commission.

The FEC is charged with holding candidates, parties and PACs to the law; how it interprets and applies the law will be crucial. In that sense, recent history is not encouraging. The FEC was created by Congress in 1974 to write regulations for raising and spending campaign contributions and to ensure they were followed. A combination of FEC diligence and party cooperation worked fairly well for four years.

In 1978, the FEC allowed parties to collect unlimited amounts of money for what were seen at the time as good government initiatives – voter registration and get-out-the- vote efforts. The definitions of what constituted those efforts were vague, they were a loophole waiting to happen. In 1988, Democrats ripped open this loophole to raise millions for the Dukakis campaign. Republicans complained, the FEC looked the other way and the soft money monster was born. By 1996, both parties were accomplices in what many businesses said was nothing less a shakedown – payoffs to gain influence and access, to avoid punishment by legislation.

The first task for the FEC now is to write rules to prevent candidates, parties and interest groups from colluding to skirt the new law. Reformers say the real task ahead will not be merely to watchdog the FEC, but to completely transform it. The current structure of the seven-member commission, with three members from each party, is a recipe for partisanship and stalemate. A non-partisan commission with clear rules, due process and real authority is needed.

Ultimately, of course, the success of any law depends upon the willingness of those under it to abide by its intent. The courts and the FEC can define the letter of the law; candidates and their parties must embrace its spirit.