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On the wrong side of finance reform

It is prudent for a journalist to join nothing much more controversial than the PTA. That goes for columnists, too. Whoever calls the balls and strikes shouldn't wear either team's uniform.

This is why I never joined the American Civil Liberties Union and why I am so thankful for that now that the ACLU has hurled itself off the deep end over campaign finance reform. It was easier to see the organization advocate the right of some scruffy Nazis to march in Skokie, Ill., than to watch it teaming up with Sen. Mitch McConnell, the National Rifle Association, the National Education Association and other misguided opponents of the McCain-Feingold bill, of which Florida's Bob Graham is a proud co-sponsor.

Nothing but people's feelings stood to be hurt by letting the Nazis march; free speech, however distasteful to the majority, clearly had to prevail.

The real issue in campaign finance reform, however, is whether paid speech _ and those who can afford it _ will succeed in silencing free speech, and those who can't afford to pay, to the great peril of this republic. In a classic example of pyrrhic liberalism, the ACLU has placed itself squarely on the wrong side of that argument.

The First Amendment's guarantees of free speech and the right of petition necessarily imply the right to be heard, on more or less equal terms, by those we are petitioning. But just try to get heard by a member of Congress these days if you or your political action committee haven't paid for the privilege. Joe Lunchbucket would have to cough up his life savings, and then some, for a single cloistered session with congressional leaders at the Breakers or with the president over coffee.

This is not because the politicians wish it to be so _ remember, Congress once enacted campaign spending ceilings on itself _ but because no one wants to be first off the tiger's back. The McCain-Feingold bill is the best and perhaps last chance to put everyone back on reasonably equal terms.

This isn't to say there are no constitutional problems in the bill. The ACLU has valid concerns over certain of the proposed restrictions on independent spending. Trouble is, it opposes them all, even as to curbing soft money. It is probably correct in viewing a categorical ban on political action committee contributions as unconstitutional. But it also opposes any restrictions on PACs. The ACLU cannot reconcile itself to limits, whether on contributions or spending, even when they would be voluntary on the part of the candidates in exchange for such substantial incentives as free television time and reduced rates for paid commercials and bulk mail. Like Justice Clarence Thomas, the ACLU refuses stubbornly to recognize the parts of the Supreme Court's controlling 1976 opinion that upheld contribution limits and voluntary spending ceilings.

It even opposes efforts to prohibit such deceits as occurred in Florida's 1988 U.S. Senate race when a foreign car lobby hired Connie Mack's campaign advertising agency and political consultant campaign consultant to help it spend $385,000, in the guise of an "independent" expenditure, helping Mack defeat Buddy MacKay. The McCain-Feingold bill says, sensibly enough, that no one who communicates with a candidate's campaign workers about the campaign can then use the "independent" expenditure loophole to evade contribution limits. Yet the ACLU opposes even this, which it calls a "radically expanded" definition.

Burt Neuborne, a former national legal director of the ACLU who now teaches at New York University (and still serves as an ACLU volunteer lawyer) effectively rebutted most of its key arguments in a March 3 letter to McCain and Feingold in support of their bill.

Among other things, he pointed out that the Supreme Court did not throw open the floodgates to independent spending in its 1996 decision concerning the Colorado Republican Party. That case, he noted, involved only regulated contributions _ not soft money _ and was limited by the facts of the case to a situation where a party has not yet nominated its candidate. (The ads in question attacked the other party's likely candidate.) He called the ACLU "flatly wrong" for suggesting the case provides First Amendment protection for soft money.

The ACLU's version of campaign reform is as far out as the Voyager spacecraft. It fancies public financing, including cash, subsidized ads and free mailing as "a floor, not a ceiling," for all qualified candidates regardless of how much special interest money they care to raise or spend. In the vernacular, Congress ain't never going to be that dumb.

Earth to ACLU: Call home.

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