What McCain-Feingold left out

The legal issues surrounding the staging of candidate debates have
bedeviled the Federal Election Commission since its founding in
1974. Two questions and their interrelationship have figured prominently.

First, how to reconcile a congressional mandate prohibiting corporate and
labor contributions to political campaigns, dating back to 1907 and 1943
respectively, and written into the post-Watergate Federal Election Campaign
Act, with direct and indirect corporate sponsorship and funding of
candidate debates. And secondly, how to preserve the appearance of
nonpartisanship while at the same time including only Democratic and
Republican candidates.

This past year saw a concerted effort to exploit these contradictions by
independent and third-party candidates and activists seeking to open up the
presidential debates. They challenged FEC regulations that permit debate
sponsorship by the corporate-funded bipartisan Commission on Presidential
Debates, created by the Democratic and Republican parities to control this
pivotal political event. The plaintiffs claimed the regulations contravened
a clear statutory prohibition on corporate contributions and expenditures
in connection with federal elections.

So far the FEC has prevailed on the theory that the prohibition had enough
wiggle-room to allow the agency to craft the debates exception. A United
States Court of Appeals in Boston ruled that the term “in connection with
any election” was sufficiently ambiguous to allow the FEC to fill in the
gap. The plaintiffs have asked the U.S. Supreme Court to accept an appeal
from this judicial slight of hand. A similar challenge is awaiting decision
by a federal district judge in New York.

Ironically, just when the FEC seemed to be making headway in the effort to
legitimize its debates regulation, the recently introduced Bipartisan
Campaign Reform Act of 2001 (“McCain-Feingold” plus Cochran) threatens to
scramble the picture all over again.

Designed to tighten the strictures on soft money and political spending by
corporations and labor unions, the bill creates a new category of political
speech, “Electioneering Communication,” which corporations and labor unions
are prohibited from funding. The definition of “electioneering
communication” — any broadcast, cable or satellite communication which
refers to a clearly identified candidate for federal office — seems broad
enough to include TV debates.

In a recent conversation with Jacqueline Salit, political director of the
Committee for a Unified Independent Party, a plaintiff in the New York
litigation, Sen. McCain seemed unaware of the implications of his
legislation for candidate debates, but was open to considering the issue.

It is urgent that he and the Congress do so.

The Federal Election Commission is responsible for the bipartisan bias of
the present debates regulation. Indeed, in 1996 it removed the requirement
that the debates be nonpartisan. In aggressively defending its prerogatives
in court, the agency put forth a theory of congressional acquiescence in
its debates regulation, pointing to a provision in FECA which places any
new or amended regulation on hold until Congress has 30 days to examine and
reject it. The U.S. Court of Appeals in Boston credited this argument.

The problem of course is that Congress never actively considered the
twists and turns of the debates regulation, and neither the FEC nor the
courts are directly accountable to the electorate or function under the
same level of public scrutiny.

Sen. McCain has placed the spotlight on campaign finance reform and
pushed for early Congressional consideration of McCain-Feingold-Cochran.
Hopefully this will lead to some open and forthright discussion of
candidate debates and whether the American people want them to continue in
their exclusionary, bipartisan form. During the period prior to the 2000
presidential debates, polls disclosed that a majority of Americans wanted
Buchanan and Nader included.

It is time for Congress to resolve these ambiguities and do something
about the FEC’s bipartisan bias. It is time for public dialogue and
definitive legislation action on these important issues.

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Harry
Kresky, an attorney in New York City, is a member of the State
Executive Committee of the Independence Party.