WASHINGTON--Pharmaceutical companies live on patent protection. They make their profits in the few years they enjoy a monopoly on the drugs they have discovered. They fight fiercely to protect their turf, and give generously to politicians to make sure they protect that turf too.
Who, then, do you think has just issued a report showing that changes in law and regulation have effectively doubled the drug companies' patent protection time? Some tiny, Naderite public interest group? Some other representative of the little guy?
No. A nonprofit institute founded and largely funded by the insurance companies. Insurance companies, you see, pay the bill for patent protection by drug companies. And they don't like it. There is more than one 800-pound gorilla in this room.
You wouldn't know that from hearing John McCain talk about how special interests buy their way in Washington. They try to, but they run up against the classic Madisonian structure of American democracy. Madison saw ``factions,'' what we now call interests, not only as natural, but as beneficial to democracy because they inevitably check and balance each other.
His solution to the undue power of factions? More factions. Multiply them--and watch them mutually dilute each other. For two centuries we followed the Madisonian model. But now McCain's crusade calls for restriction rather than multiplication: curtailing the power--and inevitably the right to petition and the right to free speech--of special interests.
True, money in politics is corrupting; opponents of McCain should admit as much. Generally one can't prove quid pro quos. But it is obvious that legislators are more attentive to the views of those who give money. Otherwise, they wouldn't give it. The problem, however, is that like all attempts to banish sin from public life--Prohibition, for example--campaign reform comes at a fearful price.
There are three basic ways to conduct effective political speech: own a printing press; buy a small piece of space (or time) in a medium owned by others, say, 30 seconds on TV or a page in a newspaper; or bypass the media and directly support a political actor--candidate, leader, party--whose views reflect yours.
McCain-Feingold would drastically restrict the third, by banning soft money contributions to parties. The Snowe-Jeffords amendment would drastically restrict the second, by curtailing political ads by outside groups.
This is bad policy, first of all, on principle. Free speech is the first of all the amendments not by accident. It is the most important. Which is why we regulate it with the most extreme circumspection. It borders on the comic that the First Amendment should be (correctly) interpreted as protecting nude dancing and flag-burning, but not political speech. And there are few more effective ways for someone who does not own a printing press to express and promote his political views than by contributing to a party that reflects them.
Hence, the second problem with McCain-Feingold. It purports to eliminate the influence of money and power in politics. In fact, it eliminates only (BEG ITAL)some
influence. It does not end influence peddling. It only skews it.
By restricting Madison's multiple factions, McCain-Feingold radically tilts the playing field toward (a) incumbent politicians, who enjoy the megaphone of public office; (b) the very rich, who can buy unlimited megaphone time (which is why so many now populate the Senate); and (c) media moguls, who own the megaphones.
The conceit of McCain-Feingold is that politicians prostitute themselves only for big corporate or individual contributors. But they give far more care and feeding, flattery and deference to the lords of the media. It stands to reason. They can be helped or hurt infinitely more by The New York Times or network news shows than by any lobbyist. By restricting the power of contributors, McCain-Feingold magnifies the vast power of those already entrenched in control of information.
How to mitigate the effects of money? By demanding absolute transparency, say, full disclosure on the Internet within 48 hours of a contribution, so that contributions can be the subject of debate during, not after, the campaign. And by requiring TV stations, in return for the public licenses that allow them to print money, to give candidates a substantial amount of free air time.
Far better to reduce the demand for political money rather than the supply. For the Robespierre of American politics, however, such modest steps are almost contemptible. McCain's mission is not the mitigation of sin but its eradication. Yet like all avengers in search of political purity, McCain would leave only wreckage behind: a merely different configuration of influence-peddling--and far less freedom.