With Victory So Close, Reformers Must Avoid Pitfalls in Final Days

Campaign finance reform is closer to passage and enactment than at any time in the past quarter century. The McCain-Feingold bill passed the Senate last year with a robust 59 votes. The corresponding Shays-Meehan bill—adjusted slightly to fit House sensibilities, to correct a few small Senate oversights and to respond to constitutional questions – has been “pre-cleared” by the Senate sponsors. If it passes the House, it will be acceptable to the Senate without first going to a conference committee.

But “close” to passage does not mean we should reserve our seats to a bill-signing ceremony. The opponents of reform, led by the formidable House Majority Whip Tom DeLay (R-Texas) with assistance from Senator Mitch McConnell (R-Ky.), will try every trick imaginable to kill reform. They now have the full and active support of Speaker Dennis Hastert (R-Ill.). The danger comes less from a frontal assault than from one of a bagful of deceptive tactics designed to leave a corpse with no fingerprints, to let Members claim they voted for reform while ensuring that nothing gets to President Bush’s desk for signature. If the genuine reform bill, Shays-Meehan, is to make it into the law books, the tactics of reform opponents need to be bared in public before the votes occur so that it is crystal clear what those votes actually mean.

We cannot be certain of all the tricks up DeLay’s sleeve until just before the bill hits the House floor for debate and amendment. The rule does not require publication of the three substitutes and 20 amendments allowed until Tuesday night, with the battle scheduled to begin Wednesday morning. But most of the tactics are clear. Their core is a successive series of roadblocks. The first is to pass a substitute bill that can be labeled as reform even though it is not. If that attempt fails, the second strategy is to pass a killer amendment that is so obnoxious to a group of reform supporters that it turns them into opponents, thereby destroying the majority coalition needed for passage. If that fails, the third plan is to add an amendment obnoxious enough to the Senate that it forces a House-Senate conference. There, House Republican leaders can stack the conference membership and force a stalemate, letting the issue languish for months until the Enron stench has faded, the issue’s momentum is gone and the public’s attention is drawn elsewhere. Here is how those ploys would work:

The Substitute. The first line of attack of anti-reformers will be to tout their alternatives. One will be the Ney-Wynn bill, introduced last year by Reps. Bob Ney (R-Ohio) and Albert Wynn (D-Md.). Ostensibly, Ney-Wynn caps federal soft-money contributions instead of eliminating them and prevents party soft money from being used to finance federal election activity, including candidate-specific issue ads on television. In reality, Ney-Wynn’s “cap” on soft money allows a single individual (or corporation or union) to contribute a whopping $450,000 in soft money during an election cycle to each of the national parties (or $900,000 to both parties) and another $180,000 in hard money to each of the parties (or $360,000 to both parties). That’s a total of $630,000 to one party and $1,260,000 to both. Double those sums for couples. Some cap.

The prohibition on national party soft money being used to finance candidate-specific issue ads sounds more promising. But these party ads, which came to dominate campaign advertising in 2000, are already sponsored almost entirely by state parties. Nothing in Ney-Wynn prevents federal officeholders and candidates from raising unlimited amounts of soft money for state parties to finance these same ads.

But Ney-Wynn provides a potential refuge for some members of the Congressional Black Caucus and some Democratic leaders who like soft money but want to vote for something labeled reform—even if it is the antithesis of reform.

If Ney-Wynn fails to attract more votes than Shays-Meehan, the rule provides the House Majority Leader an opportunity to offer another substitute bill. We won’t know what is in this substitute until Tuesday. One dangerous possibility is an earlier version of McCain-Feingold or Shays-Meehan—one that doesn’t have the fixes and adjustments that make the current alternative much better. For example, the current bill includes a separate limit and upward adjustment in the amounts of hard money individuals can give to political parties, to act as a partial substitute for the loss of soft money and to preserve a vibrant role for the parties. It also includes the Senate-passed Levin amendment, which allows state and local parties to raise soft-money contributions of up to $10,000 each to finance grassroots activities. And the bill tinkers with the language on sham “issue ads” to make it more likely to survive a Supreme Court challenge. For anti-reform Republicans who voted in the last Congress for Shays-Meehan knowing it would not become law, a vote against the measure now—with Enron intervening—would be hard to explain. So a vote for the earlier version is tempting as a way to claim consistency while wielding a dagger against reform. Among others, GOP Reps. Doug Ose (Calif.), Rodney Frelinghuysen (N.J.) and Sue Kelly (N.Y.) have been making such noises.

Killer Amendments. An anti-labor “paycheck protection” amendment would, if passed, cause defections from reform by labor-friendly Democrats. An amendment to block non-resident aliens from contributing to campaigns would be unacceptable to Hispanic Members. A provision to end Congress’ exemption from the Freedom of Information Act would be unacceptable to the Senate and force a conference. A “non-severability” amendment requiring nullification of the whole bill if any part of it were declared unconstitutional would try to jeopardize the soft-money ban. Other amendments may ostensibly strengthen the bill’s provisions or try to dilute the ban on soft money or the requirement for disclosure and contribution limits for sham issue ads. No matter how attractive they sound, they all will be attempts to force the bill to a conference or to kill it outright on the House floor.

If all else fails, anti-reformers have one last battleground—on the Senate floor. When Majority Leader Daschle brings up a motion to proceed to consideration of the reform bill, it can be filibustered; there are several other places subsequently where filibusters and amendments can be raised in the Senate. Senate reform proponents will need both 60 votes and their own sharp discipline to prevail.

In past years much of the Sturm und Drang over campaign reform has been playacting—Members voted or postured knowing that passage in one chamber would be meaningless because the other body would kill reform, or knowing that passage by both houses would be meaningless because the president would veto the bill. This is no longer playacting. Real reform is within reach. That makes the danger of a last-minute killer ploy even more palpable. Reformers need to know what the ploys are. And anti-reformers, both open and closeted, need to know that they will be held accountable.