PrintApril 1, 2008
B'rer McCain and the Briar Patch
In the classic Song of the South the wily rabbit begs the fox not to throw him into the briar patch knowing (what the fox doesn't) that he can easily escape the bushes' thorns and jump off to freedom, and that the fox will certainly do what he has begged him not to do.
I loathe the co-called Campaign Finance Reform Act sponsored jointly by Senators McCain and Feingold after an unethical, if not illegal, largely sub rosa campaign by the tax exempt Pew Foundation. To me the Act is an unconstitutional abomination, but the Democrats, who had clearly pre-arranged their end run on the Act's strictures by creating countless 527 organizations (many of which were up and running when the Act took effect), no doubt figured that Senator McCain was their perfect patsy to spearhead the passage of this legislation which they could pawn off as a bipartisan clean government move.
We've now had time to see it in operation and know the 527s, in fact, can say and do almost whatever they choose in federal elections. They are not to coordinate with candidates' campaigns in their actions, but no one can look at big operations like MoveOn and say with a straight fact that this hard-to-enforce limitation has worked out well.
Media empowerment
The Act substantially increases the power of the media, which can say whatever it chooses whenever it chooses, and which increasingly has been playing a corruptly partisan role in federal elections.
While the media has completely unfettered free speech and the 527 speech limitations seem toothless and minor and unenforceable, the Act imposes intolerable restraints on citizen free speech when it is most significant-in the period just before federal elections.
Foreign money in our elections
There's more to hate about the Act, of course. For one thing, a loophole permits foreign money to be contributed to 527s which can and do play a large election role when all prior legislation absolutely banned foreign money in our elections. Nor does the Act limit contributions to 527s. Thus it allows people like George Soros and his friends to contribute literally millions and millions of dollars to affect elections, obviating, it seems to me, the very impetus for the Act -- keeping big money out of our elections. It makes a mockery of another stated purpose as well, by making these contributions more opaque.
Replacing sunshine with darkness
In fact, it is ever harder to keep track of the sources of campaign funds when they are being funneled into so many organizations as opposed to just the parties' and candidates' coffers. Being caught at major violations of the Act in any event has resulted in little more than a wrist slap of a penalty. In effect, to the corrupt it is merely a license fee to continue violating the law. Even more ridiculous is the fact that because of a deadlock in Congress the federal agency (the Federal Election Commission) which is to oversee all this lacks a quorum and can do nothing to oversee the coming presidential election.
In fact, it is ever harder to keep track of the sources of campaign funds when they are being funneled into so many organizations as opposed to just the parties' and candidates' coffers. Being caught at major violations of the Act in any event has resulted in little more than a wrist slap of a penalty. In effect, to the corrupt it is merely a license fee to continue violating the law. Even more ridiculous is the fact that because of a deadlock in Congress the federal agency (the Federal Election Commission) which is to oversee all this lacks a quorum and can do nothing to oversee the coming presidential election.
Bre'r McCain
McCain played a key role in the drafting and passing of this ridiculous legislation, designed to help the Democrats as it limited a cherished Constitutional freedom. So why do I compare him to B'rer Rabbit?
McCain played a key role in the drafting and passing of this ridiculous legislation, designed to help the Democrats as it limited a cherished Constitutional freedom. So why do I compare him to B'rer Rabbit?
The Act's very weaknesses create countless new centers of power -- political and economic clout -- independent of the parties. This means that Howard Dean, even if he had the will and talent to prevent his party's coming train wreck, can do little to prevent it.
But wait, there's more.
But wait, there's more.
The new legislation spurred and emboldened and empowered countless fringe groups who'd been severely marginalized under the old big party system and old finance laws. In the Republican case, these groups have often been useful adjuncts to the campaigns. The Swift Boat Veterans for Truth comes to mind. It played an estimable role in the last election, and for all the smears directed to it, that group was responsible and creditable and advanced the candidate's interests in discrediting the Democrat nominee, John F. Kerry whose record the media was hiding.
But for the Democrats, the new legislation seems to have encouraged the creation of countless nutty fringe groups, largely on the left: Kos and MoveOn exemplifying my point. These groups have concentrated their fire, not on the opposition party, but like the French revolutionaries, on the moderates in their own party like Senator Lieberman. They favor unelectable candidates like Lamont who curry their favor and share their fringe beliefs.
The more the Democratic Party gets pushed off to the left, the less likely it is to prevail in any general election. In my opinion, the media cannot cover for the months to come the truth about Obama's record and beliefs. (Certainly not with his opponent rubbing it under their nose.) He is far to the left of the majority of American voters.
Now it is true that Hillary Clinton might still get her party's nomination, but to get it she's had to abandon what was her best strategy to become President. Instead she's been forced to target her message to the same left wing of the party who dominate the primaries. Her plan had clearly been to stay a bit fuzzier on the hot issues in this period so that she could more easily slip slide to the middle for the general election. Her debate gaffe on drivers' licenses for illegal aliens exposed that strategy, rendering it pretty much null for the remainder of the nomination period. She and Obama are now singing a variation of the song from Annie Get Your Gun: "Anything you can say, I can say lefter."
So it seems to me that ironically McCain-Feingold which seemed a gift to the Democrats may well be a briar patch that allows McCain to leap off to victory but ensnare his opposition which thought it would hurt Republican candidates.
I asked my friend Soylent Red what he thought of my theory. He responded:
"Decentralization of process typically improves the process over time. Free speech issues aside, it will force both parties to confront and mainstream their fringes in order to preserve electability..."
Well, maybe, I think. But right now I'm looking at the short term and to me in this legal framework, the fox has been outfoxed.
Clarice Feldman is an attorney in Washington, DC.
