Clause Would Be Time Bomb for Campaign Finance Reform

Campaign finance reform sailed through a surprisingly smooth first week in the Senate. Now the waters get much more turbulent.

As the second week of debate opens today, a critical subplot will revolve around a little-noted proposal by opponents of the principal reform legislation that could plant a time bomb in it.

The arcane provision, backed by President Bush, would effectively sink the whole bill if any of its provisions is found unconstitutional.

“And we’d be left with no act,” said Trevor Potter, former chairman of the Federal Election Commission. “That’s sort of the endgame there.”

This battle is just one of several facing the Senate in its final push to rewrite campaign laws. The bill’s sponsors, John McCain (R-Ariz.) and Russell D. Feingold (D-Wis.), hope to force a final up-or-down vote by week’s end on their proposal to impose strict limits on the fund-raising power of political parties. Such a vote has eluded them since they formed their alliance in 1995.

First, senators will seek to cut deals on new rules for the political currency known as hard and soft money. They will clash over proposals to rein in sneak attacks by interest groups in the days before an election. And they will search for a compromise that earns the mantle of reform without damaging their own reelection chances or elevating one party at the expense of another.

Advocates sounded optimistic after their first week on the Senate floor. “I think we’re going to win this,” Feingold said Sunday on NBC’s “Meet the Press.” “I think we’re going to ban soft money, and I wasn’t absolutely sure a week ago, but I’m feeling better now.” Even if a bill clears the Senate, it will face plenty of hurdles. In the House, backers of the McCain-Feingold bill have to overcome an openly hostile GOP leadership. “I’ll work as hard as I can to beat this,” House Majority Whip Tom DeLay (R-Texas) said Sunday on “Meet the Press.”

Twice in recent years, the House has mustered bipartisan majorities for more sweeping reforms than the Senate is contemplating. If the Senate acts this year, it may be hard to find a compromise bill that would command majorities in both chambers.

Then there is Bush. The president has said he supports banning unlimited corporate and union contributions to political parties. But he would not rule out unlimited contributions--or soft money, as such contributions are known--by individuals. McCain and Feingold support a total ban.

Bush is encouraging a rival bill by Sen. Charles Hagel (R-Neb.) that would cap soft money donations to national parties--though not to state parties--at $60,000 per year. But he has stopped short of threatening to veto McCain-Feingold.

“I think most of us are working toward some kind of a bill that will pass. . . ,” Hagel said Sunday, “one that will get the signature of the president.”

Sen. Mitch McConnell (R-Ky.), leader of the forces opposing the McCain-Feingold bill, said on ABC’s “This Week” that he would vote for Hagel’s approach. “I don’t think we know how it’s going to end yet,” McConnell said.

This much is sure: The battle will not end even if Bush signs a bill into law. Reform opponents would immediately launch a constitutional challenge, wielding the 1st Amendment’s free speech guarantee.

That approach worked the last time Congress overhauled campaign finance laws. In 1974, Congress enacted a system that limited donations to candidates and spending by them. Two years later, in the landmark case of Buckley vs. Valeo, the Supreme Court struck down the spending restrictions but let the contribution limits stand. Donations made under those limits--for example, $1,000 per candidate from an individual--are known as hard money.

Despite such limits, the 1974 law failed to curtail the flow of unlimited donations. Political parties have interpreted the court’s ruling as allowing them to collect unlimited contributions as long as they do not spend them on explicit efforts to elect or defeat a particular candidate. Critics say this interpretation has allowed donors to wield undue influence over politicians with six- and seven-figure contributions that otherwise would be illegal.

If campaign reform is enacted, the court is again sure to have the final word.

Opponents of McCain-Feingold, perhaps fearing a soft money ban might survive constitutional scrutiny even if other parts did not, hope to attach a provision ensuring that the whole bill is unconstitutional if any part of it is.

The White House, in a statement of principles this month, supported such a “non-severability” clause to “ensure fair and balanced campaign finance reform.”

McCain and Feingold label the proposal a ruse to kill reform if all else fails. But the proposal is generating considerable internal debate among Senate Democrats.

Nearly all Senate Democrats publicly claim to back the bill. But some privately fear their party would suffer if the courts allowed a soft money ban but struck down, for example, a provision of the bill that regulates political advertising by groups other than parties and candidates. In that event, these Democrats worry, money to finance GOP-led attacks would simply flow unchecked through hard-to-trace outside groups instead of the Republican Party.

Seeking to counter those concerns, reform advocates in the House last week urged Senate Democrats to reject the non-severability clause.

Two Massachusetts Democrats, Reps. Martin T. Meehan and Barney Frank, noted that the House defeated such language in 1998 and 1999. They warned that a non-severability provision might “create an incentive for opponents of reform to offer patently unconstitutional amendments in the hope of poisoning the prospects for reform’s survival in the courts.”

Senate Majority Whip Don Nickles (R-Okla.), whose job is to count votes among Republicans, told reporters he supported non-severability. But he added, “I’m not sure it has the majority vote.”