There are many conservatives who say that kind of thing is spinach and the hell with it. Indeed, the current discussion over political financing almost begs for a confrontation with the Supreme Court, and is probably headed for that whichever course is adopted by Congress.
Sen. Mitch McConnell, R-Ky., who is a persuasive advocate of leaving things as they are, summed up his position on Monday in the initial debate. "The only way to really get at the core of this problem, if senators believe that the influence of money in politics is so pernicious, is to change the First Amendment. ... The nub of the problem is you can't do most of those things as long as the First Amendment remains as it is."
But that isn't so, as we have seen. There is now in the law, and OK'd by the Supreme Court in Buckley vs. Valeo, a provision that limits individual contributions to an election candidate to $1,000. If the First Amendment absolutists were correct in what they say, that 1974 law would have been struck down as unconstitutional.
There is one out that the ACLU types have. It is that although the Supreme Court OK'd the restrictions in Buckley it oughtn't to have done so. And an extension of the restrictions proposed in McCain-Feingold is going to provoke the court into doing what it should have done back in 1976: rule against any restrictions to the expression of political opinion.
It is useful to begin at the other end of the argument by asking: What is a government by the people and of the people expected to do, if the public begins to think that existing practices challenge the integrity of democratic government?
Sen. Harry Reid, D-Nev., illustrated his complaint by citing the 1998 election campaign in his home state. The population there is 1.5 million people. Sen. Reid and his opponent spent more than $20 million in their campaigns. What is dismaying about that is less that some people are willing to spend $20 million on a race, or approximately $13 per vote, but that the challenger is faced with near-insuperable problems, manageable only by very rich men and women.
The impediments to challenge are an invitation to polarizations, because grass-roots contributions on a major scale are hard to stimulate unless voters feel threatened. It is one thing for a wealthy voter to contribute $10,000 or more to a campaign. But that is done only by a class of voters who are individually wealthy, or acting through surrogates. For the Right, it is the business corporation. For the Left, the labor union syndicates.
Sen. McConnell does useful work in insisting that the polemical scene should be described in terms of cultural reality. It isn't just the GOP's television ad quarreling with the Democrats'. The dominating voices in the political forums are the media. Consider us book-writers. Receive an unfavorable review in The New York Times for your latest book, and there isn't enough money in the bank of the wealthiest publisher to contend effectively against such reviews.
Applied nationwide, you have political candidates who claim a right to struggle against unfriendly and potentially lethal adversarial commentary by the editorialist or television commentator. Such a person, it is reasonably claimed, has got to get air to breathe by publishing issue advertisements, and these cannot be financed by $1,000 donations by individuals. You need the amalgamated strength of larger entities. That translates to soft money.
In the end, the fear is of votes that reflect vested interests. The problem of modern government is that most of what is truly influential, in the world of positive law, is traceable to government. In a better ordered world, it would not so greatly matter what Congress decides on this or that issue, because Congress would forswear the conceit of regulating our lives. But as long as Congress has the taxing authority, combined with the right to tax progressively, there is a need to fight back, but in this case, the weapon being used by opponents of McCain-Feingold is a view of the First Amendment's protections that is historically disreputable.