The pop quiz questions for today: Will a Supreme Court that bars the government from regulating simulated child pornography allow that same government to restrict political speech in the days just before an election? Is the right of any group to use its own funds to criticize a public official less important than the right of a film producer to distribute what Congress and most Americans consider highly objectionable material?
If your answer to those questions is no, as mine is, then you have to wonder what will happen when the high court gets its hands on the campaign finance measure recently signed into law by a reluctant President Bush. My guess is that the statute will emerge as one more unintended example of a "reform" effort that damages, rather than improves, our political system.
Let's review the bidding. In 1996 large majorities in Congress, responding to widespread public complaints, told pornographers who were creating computer-generated images of make-believe children engaged in sex acts that they must cease and desist.
The law was challenged as violating the First Amendment freedom of expression, and last week the Supreme Court, with only two dissenting votes, struck down the statute. Justice Anthony M. Kennedy, writing for the majority, said the threat of punishment under the measure would mean that few "would risk distributing images in or near the uncertain reach of this law. The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere."
Now, consider what the McCain-Feingold-Shays-Meehan bill, signed into law last month, does inside that "vast and privileged sphere." It has two main parts. The first closes a loophole in existing laws that has permitted corporations, unions and wealthy individuals to make unlimited "soft money" contributions -- often of six figures -- to political parties. The court consistently has upheld contribution limits to candidates, as low as $1,000 per person, as a legitimate device for preventing corruption or the appearance of corruption. This part of the new law should easily pass muster.
The second part of the law aims at so-called issue advocacy ads, the rapidly proliferating, lightly disguised campaign messages that typically say something like, "Candidate Jones wants to double your taxes and take away your Social Security. Tell Jones he is wrong." By avoiding "magic words" such as "vote against Jones," these ads currently can be financed without regard to any contribution limits. Political parties have used "soft money" to buy such ads, and interest groups of all kinds have dipped into their treasuries to put up such ads themselves.
The new law, which takes effect in November, would require issue ads that mention a candidate's name to be financed under the same limitations it sets for all other political contributions. If the Sierra Club or the National Rifle Association or any other interest group wanted to buy ads praising or criticizing a candidate for federal office in the weeks leading up to Election Day, it could not simply use its members' dues to pay for them. It would have to solicit its supporters to make additional gifts for that specific purpose, within the contribution limits.
Critics of the new law have filed suit, and the case will likely reach the Supreme Court next year. Government lawyers will argue that it does not unduly burden the free expression rights of all such groups. But given the Supreme Court's solicitude for an expansive reading of the First Amendment (which, as a journalist, I assuredly welcome), the odds are that this part of the law will be struck down.
The net effect: The political parties, already weakened by many forces, will have lost a major source of their financing with the outlawing of "soft money," while interest groups, whose influence has grown by leaps and bounds, will be free to play an even larger role in campaigns, thus expanding their grip on government.
And that in turn will make it ever harder to break out of gridlock in Washington. Political parties, as large coalitions, learn to adjust to the competing demands of their own factions, and they understand that those they help elect must at times compromise with the opposition to get things done. Single-issue interest groups are more adamant in their demands on officeholders and less willing to see them seek middle ground.
It was not the intention of the sponsors of this new law to weaken parties and strengthen interest groups. But if the court does what I think it will do, that will be the damaging consequence of this latest reform effort.
© 2002 The Washington Post Company