Chasing Windmills in the U.S. Senate

Remember the tale of Don Quixote? It follows the misadventures of a tarnished, yet inspired romantic who sets out to find his idealized lady Dulcinea. Along the way, he attacks the marionettes of a traveling puppet show as if they were enemy soldiers, and taking the windmills to be hostile giants, charges at them.

The recollection came to me as I watched the U.S. Senate begin a two-week debate over campaign finance reform. Sen. McCain, in the role of Don Quixote, has set out to protect the patriotism of his fellow public servants by attacking the "enemy soldiers" of special interests and the "hostile giant" known as "soft money." But, like Quixote before him, it seems to me McCain is simply chasing windmills.

First, it is important to explain exactly what so-called "soft money" is and what it isn't. Soft money is money given to political parties that is not subject to the contribution and spending limits of the 1974 Federal Elections Campaign Act (FECA). It is not subject to those provisions, because it's not used to expressly advocate the election or defeat of candidates for federal office. Soft money is not, however, "unregulated" money. It is. In fact, soft money is regulated to varying degrees in each of the fifty-states.

So if soft money cannot be used to expressly advocate the election or defeat of a candidate for federal office, what is it used for? Soft money is used by the parties for its grassroots campaigning efforts, such as yard signs, funding registration drives, phone banks and get-out-the-vote efforts.

Banning soft money, therefore, would weaken the national parties at a cost of further handicapping challengers to entrenched incumbents. Incumbents have a lot of built in advantages in any campaign – name ID, an established organization and access to far more hard money contributors. Many challengers only have the force of their ideas and the willing support of their party. Limit the party's ability to help, and all you have done is protect the incumbents. That maybe what some in the Senate hope to do, but it is not the goal McCain uses to justify his bill. To him, this is about protecting the integrity of his colleagues from the evil forces of special interests.

So if soft money is not inherently evil, why are so many following McCain's charge? The truth is many are just plain tired of spending a lot of time on the phone, trying to raise financial support for their campaigns and their respective parties. You hear this all the time: "We spend all our time raising money!"

Why is that? It's certainly not because the city is awash in unlimited soft money. In fact, it's the opposite. Incumbents spend so much time raising money because the cost of campaigning has increased rapidly, while the cap on hard dollar contributions (money that can actually be spent directly on their campaign) has not.

Unfortunately, the McCain-Feingold bill does little to solve this problem. The central component of their bill is a ban on all soft money contributions to the national political parties. This would have serious consequences for their get-out-the-vote efforts and voter registration drives. Those activities will still have to take place, which means hard dollars will have to be allocated for their purpose. That means more time spent raising capped hard dollars.

Sens. Hagel and Landrieu have come up with a preferable, yet still flawed, alternative. Their bill would cap "soft money" contributions, while increasing "hard money" contribution limits – tripling them for individuals. It would also strengthen disclosure requirements by increasing the frequency of reporting and by making disclosure reports immediately available on the Internet.

Most telling, however, they provide for an expedited review of the soft money cap by the D.C. federal district court and direct appeal to the U.S. Supreme Court. They do this because the courts have a consistent record of ruling that the act of contributing money to a candidate or party is the equivalent of a public proclamation of support, and therefore protected by the First Amendment.

And that's the point really. There is no doubt that Sen. McCain believes he is on a noble quest. But the reality is, he's just chasing windmills – and constitutionally protected ones at that.