So, Where Do We Stand Today? – A Conclusion
Perhaps some ideas in an article in Slate can help put this into perspective, even if it is a somewhat cynical one. This is in reference to the death of an earlier version of McCain-Feingold in 1997, which was more comprehensive. However, his point is still relevant for our purposes today. Link to full text of the article as well as access to the site.
He notes that even if the bill had passed, campaign finance lawyers and others would have found ways to evade it immediately. For instance, the soft money ban only disallowed contributions to national political party organizations, making it easy to give simply at the state level. A small change in the process would be all the special interests would suffer, and they would achieve the same result!
Ultimately, campaign-finance laws only inconvenience campaigns as the lawyers figure out how to circumvent them and the courts dismantle them as threats to First Amendment rights to free speech. The heap of rules and prohibitions that survive these challenges are subject to the law of unintended consequences, usually causing an effect that is the opposite of the original intention. "Money is like water," said former Clinton aide Harold Ickes about campaign finance in a recent New York Times Magazine profile. "If there is a crack water will find it. Same way with political money." (Gross, 10/11/97)
As the above statement suggests, here we are, 25 years later, with new problems and attempts at solving them which are not always realistic. The Supreme Court’s current opinion regarding political money as free speech would never have allowed this bill to stand anyway. Given the evidence we have examined here, it appears that this debate has two directions in which it could go.
One, which does not seem likely, is that the Supreme Court could realign its stand on this issue and hand down an opinion more in line with Justice White’s opinion. That is, an interpretation weighing state interest in "eradicating the hazards of corruption" and "restoring public confidence in federal elections" as being so great as to justify slightly tempering the First Amendment in order to give reforms some "teeth". If legislators had the leeway to build comprehensive reforms which plug the "Endless Loopholes", as the Slate writer calls them, they might have greater efficacy. Also, if the Supreme Court saw fit to raise the issue of equality to the forefront, we might see lenience with respect to laws to "level the playing field". As yet, the Court has not seen the issue of assuring equal access to political influence (by limiting extravagant contributions by the wealthy) as one which may take precedence over the right to free speech and association.
An obvious drawback to the prospect of bending the First Amendment is the fear of an unstoppable landslide eroding 200 years of entrenched freedoms. If they are chiseled a bit here, shaved off a bit there, who is to say that compromising these guaranteed rights will not become a habit, rendering them casualties of passing whims?
The other option, on the opposite side of the spectrum, would be to give up on reforms as Sabato and the Slate article suggest, and resign ourselves to the idea that if we have not circumvented the First Amendment in 25 years of attempted reform, we never will. Take Sabato’s idea of deregulation plus total disclosure of information and leave it to our free market system to let people be informed "consumers". However, this has its weaknesses and drawbacks as discussed above. Fighting the same battles on the same well-worn paths will lead to the same destination – nowhere.
How do we overcome this when there seems to be no middle ground and conflict between the two seems irreconcilable? (and indeed has been so far) No one seems to have the answer. Maybe there cannot be a solution when the problem is our attachment to several deeply held, ingrained values. Free speech, association, and individual liberty are at constant odds with our desire for equality, fairness, and faith in the legitimacy of our system. Every time this topic arises, we visit these age-old value conflicts and watch as they battle again to a standstill. As Americans we want it all; liberty, freedom, equality of opportunity and of competition, faith in responsible and effective institutions of government, and a democratic forum in which to address our needs.
As unpalatable as it may be, we sometimes must choose to compromise some in
favor of others. As yet, we have chosen unfettered individual liberty over
ensuring fairness and equality of competition. Until this changes, we will
continue to see the same cycle of failed attempts at reform coupled with high
levels of discontent and no plausible solutions.