First Amendment champions blame the McCain-Feingold law itself for shifting political money toward outside groups and away from parties and candidates. GOP presidential hopeful and former Massachusetts Gov. Mitt Romney has said the solution is to throw out the limits on contributions for all political players, not just super PACs.
The soft money ban “is dislocating the natural flow of money in the political process,” election lawyer Jan Baran of Wiley Rein said. “The participants who are most accountable and the most transparent, which are candidates and political parties, are the ones who may not accept or use soft money. I don’t think that makes sense.”
“In light of the changed landscape since the law, I think it’s almost indisputable that the law is hurting political parties,” concurred Bradley Smith, chairman and co-founder of the Center for Competitive Politics.
Some campaign finance experts counter that the soft money ban actually strengthened the parties.
“The parties redirected their efforts and raised even more than before McCain-Feingold, and they did it in a way that stimulated participation, stimulated mass donors,” said Michael Malbin, executive director of the nonpartisan Campaign Finance Institute. “It proved to be beneficial to the parties, not harmful.”
But few dispute that the political system has changed radically since the McCain-Feingold reforms. Even the notion that two Senators on opposite sides of the aisle would collaborate on a bill of any kind is “absolutely impossible” to imagine today, said Thomas Mann, a senior fellow in governance studies at the Brookings Institution.
“You build a record, you have some big scandals, and you get an array of forces in power, and you can get something done,” Mann said. “But that took years to do with McCain-Feingold, and it took Enron to pull it off.”
The law was enacted in the wake of the accounting scandal that led to the bankruptcy of Enron Corp.
Little wonder that both McCain and Feingold look to the courts, not Capitol Hill, when asked what lies ahead. The McCain-Feingold law itself did not take effect until the Supreme Court upheld its constitutionality in McConnell v. FEC in 2003. Seven years later, McCain recalled going with Feingold to the Supreme Court, now under new and more conservative leadership, to hear the Citizens United oral arguments.
“Very seldom in my life have I been more depressed,” McCain said, “because the absolute ignorance of campaign finance reality by many of the judges, especially [Antonin] Scalia, astounded me.”
Feingold, who now heads a PAC dedicated to reversing Citizens United, suggested the Supreme Court may come to regard that ruling in a different light. Justices Ruth Bader Ginsburg and Stephen Breyer suggested recently that the Citizens United ruling should be revisited.
Feingold said: “I think they’re taking judicial notice of the fact that the court has opened up an incredible loophole in our system and has fundamentally changed the way that our democracy works, in a negative way.”