CONGRESSIONAL PROTECTION

The constriction of free speech through the Bipartisan Campaign Reform Act of 2002, now being protested by a propped up Christian Civic League of Maine, is the price Congress was willing to make the public pay to remove a legal means to Congress’ own corruption. It is an unlovable bargain, but it should remain in place until a better response to the influence of politics via cash can be found.

The corrupting force addressed by BCRA is soft money – the unregulated millions traditionally spent either by third parties or political parties laundering money to support a candidate or attack an opponent. One of the ways the reform tried to limit this influence was to ban corporations from running ads naming candidates within 30 days of a primary or 60 days of a general election. Under the act, electioneering issue ads are prohibited by organizations, though they may create political action committees and pay for ads with limited and traceable hard money.

Last month, the religious conservative group Focus on the Family asked likeminded groups to consider running ads about pending legislation called the Marriage Protection Amendment in their state that would challenge this restriction. The Christian Civic League offered to run an ad during the affected period of time, mentioning Sen. Olympia Snowe.

The question before the District Court for the District of Columbia is whether the league’s ad counts as the prohibited electioneering communications. The league says it doesn’t because the ad refers to both candidates (Sen. Snowe) and non-candidates (Sen. Susan Collins), addresses a legislative issue, skips over party affiliations and doesn’t mention the upcoming election.

While it is certainly true that the league’s positions on marriage weren’t just developed in the context of the election, the ad appears to be merely a test for determining how big a loophole advocacy groups have within BCRA.

If, for instance, this ad can be run, then why not a large ad buy in the closing weeks of a campaign that praises a member of Congress for past legislative decisions and offers hope that the member will continue to make good decisions on specific legislation in the future? That would return soft money to the system and render BCRA ineffective.

Among the members of Congress intervening in the case is Rep. Tom Allen, who says, “If you can have ads like this, the door is basically open and the meaning of BCRA is dramatically reduced.”

The remedy for this problem – don’t identify specific members of Congress in the ad, stay within hard-money guidelines, advertise outside the restricted period – are tradeoffs the court has allowed in a previous case. They would apply in this instance as well.

No one should be happy about limiting speech, but in an era of Jack Abramoff there should similarly be no doubt about the influence of money on the political system. BCRA wouldn’t stop that one, but carefully limiting ways for all the other Jack Abramoffs out there to buy access to Congress is strongly in the public’s interest.