After running a few gauntlets, like Hagel's soft-money legalization and a hard-money fight that ended in a sensible compromise, and picking up a few constitutional soft spots, like the constitutionally vulnerable amendment aimed at keeping the special-interest groups from bullying the political parties, the McCain-Feingold soft-money ban cleared the severability hurdle Thursday with a surprisingly strong 57-43 showing.
"We are gratified by the size of the vote," McCain said afterward. After casting the vote on the Frist-Breaux amendment, which would have doomed the heart of the bill if any of its appendages were struck down by the courts, as a simple up-or-down vote on soft money, McCain found he had hung onto all but six Democrats and picked up a handful of Republicans too thanks in no small part to the ratcheting up in the "hard money" that, in a world without the soft kind, will the GOP's bread and butter.
At the post-vote news conference, Cindy McCain's eyes were wet. The two weeks of free-for-all Senate debate that her husband had warned would be no "day at the beach" had turned out to be a rather gratifying display of old-time democracy studded with orations, marked by backroom compromise and infused for the participants with the very real drama of self-interest. These politicians weren't just rewriting law, they were performing surgery on their own success, changing the system that got them where they are today. This was a bill that truly hit them where they live, and it showed.
McCain-Feingold is not passed yet. Tom Daschle's services corralling a handful of happy-footed Democrats for severability appear to have been bought at the price of haste (got to foul up that Bush budget, after all), and the final victory that even Mitch McConnell expected Thursday night will not come until Monday. But after five years of butting up against Trent Lott's gatekeeping and McConnell's filibustering, John McCain and his shadow army of disgruntled voters finally got a soft-money ban onto the table, out where he could tempt senators with the prospect of a slightly less prostituted existence, if they were willing to take a chance. And more than half of them took him up on it.
No doubt improving those chances for victory on the Senate floor was the steep and treacherous climb McCain-Feingold still faces on the Hill. What has McCain won? A long and bitter rematch in the House, where Dennis Hastert and Dick Gephardt are both starting to stammer and Tom DeLay is loaded for bear. Shays-Meehan, McCain-Feingold's House doppleganger, always cruised when it had nowhere to go now the knives will be drawn. And if the twin bills don't match up exactly when they're through down to the last amendment? McCain gets a reconciliation fight, with a new vote in both houses.
From there, to the White House "This is a bill in progress," Bush was saying Thursday, not sweating much yet. "It is a bill that continues to change and I'll take a look at it when it makes my desk." and then up the long flight of stairs to the Supreme Court, after which we may well find out that banning soft-money donations to political parties only makes things worse. The 2002 election cycle, at least, seems safe.
McCain won, and now the self-styled Senator Quixote will have to spend the weekend learning how to make a victory speech. There will be tears, no doubt, and we are likely to suddenly notice how the last year has aged the gentleman from La Mancha. There is more wrangling ahead with Bush, on this and other issues, and no doubt McCain will make sure to cast his shadow over the fight in the House. But dare we read into the recent emergence of fresh face John Edwards on the issue as one sign McCain could be ready to pass the campaign-finance torch and retire to figurehead status?
The McCain-McConnell duel, at least, ended Thursday with a concession. Campaign finance reform's least apologetic enemy gave up the fight in full-on supervillain mode, thrusting his pointer at a chart of the fund-raising future and growling to supporters particularly Democrats that they would rue the day they bit the system that feeds them.
"This is a stunningly stupid thing to do, my colleagues, and don't think anybody out there is going to save us from this," McConnell said. "I just want to welcome you to a hard-money world."
Responded Chris Dodd, the Connecticut Democrat who was McCain's general on the floor: "Yes, it is a new world. And I think it is a better world."
On Week Two, Day Four of the Senate debate on campaign finance reform, McCain-Feingold was ready to cross the threshold.
George W. Bush says he won't veto it. Phil Gramm says he won't filibuster it. Trent Lott says he wants a final vote on it Thursday night. And Tom Daschle says it's got a very good shot.
It just may happen. Which is not to say that all the Republicans have climbed aboard, or that some Democrats won't be jumping ship. But the prospects for final passage Thursday night or Friday of the soft-money ban that John McCain and Russ Feingold have been ramming against the Senate's doors for five years now have never, ever looked better.
So what's the catch, you ask? There are three.
What the heck is non-severability?
First, by Thursday night McCain-Feingold may have an Achilles' heel: non-severability. That vote, a bid to make the entire bill contingent on the constitutionality of all its parts, will attract not only overt enemies of the bill but covert ones too, and could be a close one.
As the debate and procedural maneuvering wore on Thursday afternoon, the severability question centered on one constitutionally vulnerable amendment. Snowe-Jeffords, courtesy of the gentle Republicans from Maine and Vermont, respectively, would bar special-interest groups from using corporate or union dollars to buy broadcast time 60 days before an election. It's another amendment, like Paul Wellstone's earlier in the week, aimed at curtailing the influence of special-interest groups on the post-soft-money political landscape.
Russ Feingold, acknowledging that the courts might well strike Snowe-Jeffords down, called it a baby-and-bathwater issue and quoted his partner McCain: "Non-severability is French for 'kill campaign finance reform,'" Feingold said, "and I think he's right." Richard Durbin (D-Ill.), who still hasn't gotten over Rehnquist's deciding Florida vote, announced that the conservative court had too much power already and that campaign finance reform was worth risking an imbalance down the road.
John Breaux, head Democratic defector and co-sponsor with Tennessee Republican Bill Frist of the non-severability amendment, argued that McCain-Feingold's three main components the soft-money ban, the raising of hard-money limits, and Snowe-Jeffords all went together. Fellow defector Robert Torricelli concurred: Without any one of the three, the system goes out of whack.
Mitch McConnell went straight for the other Democrats' queasy stomachs, daring Snowe-Jeffords supporters who say they've made it constitutionally sound to put their money where their mouth is and taunting Democrats with the prospect of big bad conservative special-interest groups run amok. "We will need the political parties to defend our candidates if Snowe-Jeffords is struck down," McConnell said.
And then came a weary-looking McCain, who only needed a minute. "If you vote for this amendment, you are voting for soft money," he said. "That's really what this vote is all about."
By 4:30 p.m., the Frist amendment had been tabled, though the issue probably hadn't gone away, and senators took some time to remember a fallen ex-colleague. McConnell whipped out a chart that demonstrated how bad the brave new McCain Feingold world was going to be for Democrats. And then more amendments started coming; the final vote seemed far away.
DeLay, DeLay, DeLay
And it's only the beginning. If McCain-Feingold passes, it's on to the House, where Shays-Meehan, McCain-Feingold's long-standing shadow in the lower chamber, has passed by comfortable margins for years. But with Bush deferring the villain's role to Congress, if the reliable Senate backstop falls, DeLay is vowing to step into the Mitch McConnell role and do whatever it takes to stop the House from meeting McCain halfway. Shame, after years of high-pitched support, may keep Senate Democrats in line, but the wider (and more anonymous) bipartisan coalition that backs the ban in the House could prove to be vaporous. Campaign finance reform has always attracted the faux Quixotes in droves.
Third, there's the courts. Severable or not, the lawyers led by a bedfellow coalition of the ACLU, the conservative Southeast Legal Foundation, and whomever McConnell hires are lining up to take a whack at the constitutionality of whatever Bush signs into law. One lawyer, James Bopp Jr., has been doing this sort of thing on the state level for years, and he's got 30 knockouts in 33 decisions.
And what does the First Amendment say?
The area is gray the Roe v. Wade of campaign finance, 1976's Buckley v. Valeo, upheld limits on contributions, because of the "actuality and appearance of corruption resulting from large individual financial contributions." (The court found campaign spending limits, meanwhile, unconstitutional on free-speech grounds.) But while the fattest target would be Paul Wellstone's limits on issue-advocacy groups, the McConnells of the world who still say the problem isn't too much money in politics, it's too little will still be gunning for the whole shebang.
The best case scenario
Clear all those hurdles, and there's still the fact that donors abhor a vacuum. McCain has been the first to admit that soft money was already supposed to be illegal making it illegal again won't change the fact that it won't be long before lawyers and money, like nature, will find a way back in to the political process.
That's a problem McCain would dearly love to have.
On Week Two, Day Three of the Senate debate on campaign finance reform, McCain-Feingold got on a roll.
After weathering Chuck Hagel and his soft-money legalization plan Tuesday, and getting the word Wednesday from White House spokesman Ari Fleischer that President Bush had no plans to stand in their way, McCain and his partner turned to the tricky business of hard money and finding a contribution limit that both Republicans and Democrats could be satisfied with.
And Wednesday afternoon, they pulled that one off too.
Under the deal, individual, "hard money" contributions that an individual can give to a candidate will now be limited to $2,000 a year, up from the current $1,000, a limit that dates back to 1974. There's also a new ceiling of $37,500 in total annual contributions to candidates and parties, up from the current $25,000 that an individual can give.
And both limits will be indexed to inflation.
Sounds reasonable, right? It also walked a very fine line. Hard money is the fund-raising category in which Democrats still trail Republicans by a considerable margin. So they were understandably leery of doubling or tripling that margin of defeat. On the other side of the aisle, however, a hike in hard-money limits may have been the minimum price for Republican support which McCain dearly wanted, especially when that non-severability vote comes around sometime Thursday.
The deal, which arose out of an amendment from Democrat Diane Feinstein of California, went through. When it was all over, Democrat Chris Dodd was saying he'd given as much as he could, and Republican Mitch McConnell was saying he'd gotten the minimum he could accept.
It's enough to make you want to vote again.
On Week Two, Day Two of the Senate debate on campaign finance reform, McCain-Feingold met the enemy, and won. For now.
Rather than ban "soft money" donations to political parties, Nebraska senator Chuck Hagel's rival campaign finance bill would restrict them to $60,000 in yearly donations. Hagel's bill would also triple to $3,000 the limit on individual hard-money contributions, and codify full-disclosure requirements on donations.
Breaking down the Hagel bill into its three parts and voting on each separately, the pro-McCain forces went two for three. Senators OK'd the full-disclosure requirements (which is the one part of campaign finance reform acceptable to hard-line opponents like Mitch McConnell and is not deemed a poison pill by McCain) and voted down the first two, leading supporters of the McCain-Feingold bill to cautiously claim a victory.
The tripling of the hard-money limits was fought for by Republicans as a long-overdue inflation adjustment, if nothing else. McCain was willing to talk about it he'd discussed a compromise along those lines with conservative Republican Don Nickles but the limits hike was something of a dealbreaker for Democrats, who lag far behind the Republicans in raising that sort of cash. Compromise can wait the amendment went down, 52-47.
And McCain fared even better with the third part of the Hagel bill, which was the most significant, at least in terms of principle. Senators voted to "table" Hagel's soft-money limits 60-40, essentially killing the provision. And suddenly the future of campaign finance reform looked almost bright.
"Our principal goal has been for a long time to get rid of soft money; this was the vote that got rid of soft money," Feingold said after the vote.
The drive to drive Democrats off the McCain-Feingold reservation with a hike in the hard-money limits will be back as a new amendment, perhaps as early as Tuesday evening. And the vote on "non-severability" due as early as Wednesday or Thursday still looms. But backers of McCain-Feingold (and it's interesting to note that buzz-worthy frosh John Edwards, Democrat of North Carolina, has lately been putting himself at the head of this pack) are ending all their press conferences with words like "very optimistic."
In Week Two, Day One of the Senate's long-awaited campaign finance free-for-all, things finally got ugly for the protagonists.
Opponents of John McCain and Russ Feingold's vision of campaign finance reform have a ticking time bomb up their sleeves expected to be introduced later in the week and it's called "non-severability." That means that if any part of a campaign-finance bill that comes out of the debate is later ruled unconstitutional, then the whole bill goes down. And Monday, they planted the detonator.
The amendment that could scuttle the whole enterprise, proposed by progressive Democrat Paul Wellstone of Minnesota, is reformist at heart. Under the current system, unions and corporations are banned from running ads that target specific candidates within 60 days of a general election or 30 days of a primary, but lets other groups do so if they disclose their funding. Wellstone's amendment extends the ban to independent advocacy groups, from the NRA to the Sierra Club, and he described his proposal as plugging a loophole.
But the amendment also provided an opportunity for McCain-Feingold's enemies many of Wellstone's fellow Democrats included. McCain, along with many experts, believes that such an extension of the ban is unconstitutional, because the constitutional hurdle is higher for such groups than it is for unions and corporations, which are already restricted in their political activities. And if non-severability passes and Wellstone's amendment is declared unconstitutional, the whole bill goes down. So opponents of McCain's bill hopped on board the Wellstone train, passing it narrowly by a vote of 51 to 46.
"If I thought it was constitutional, I would have voted for it," McCain said afterward. With the non-severability vote now a potential bill-killer, and Nebraska Republican Chuck Hagel's rival bill, which would limit but legalize the "soft money" contributions McCain and Feingold are desperate to ban, due Tuesday, the rest of the week just got a lot more dangerous. But McCain says it ain't over yet.
"This is a tough business," he said. "No one said it was going to be a day at the beach."