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Next Monday, the U.S. Supreme Court will hear arguments on a constitutional challenge to the McCain-Feingold campaign finance reform act. No doubt, a 2000 case called Nixon v. Shrink Missouri Government PAC, dealing with a Missouri law limiting certain campaign contributions, will be much on the minds of the court during the special four-hour argument. (Indeed, the solicitor general cites Shrink on page 6 of his brief in the McCain-Feingold case.) But the parties and the court should consider the case not for what most believe it stands for, but rather for the sham that Missouri’s election law reform actually has perpetrated there. Missouri set contribution limits for state officials that were attacked in Shrink as unconstitutionally low (e.g., $525 for a state senate candidate). Six justices found them constitutional. The state’s avowed goal was to prevent corruption and the appearance of corruption. Justice Breyer’s concurrence stated “I agree that the legislature understand[s] the problem-the threat to electoral integrity, the need for democratization-better than do we.” He couldn’t have been more correct-but only ironically. The court looked at only the provision they were sustaining, ignoring the rest of the statutory scheme. When viewed as a whole, the challenged provision emerges as a sham; it allowed enormous sums of money to continue to flow and influence elections. The limits sustained in Shrink satisfied the drive for reform, but fooled everyone involved. There may be an emerging social consensus-a factor today’s court loves to embrace-toward campaign finance reform. Briefs supporting Missouri included those of the U.S. solicitor general, scores of attorneys general, members of Congress and political scientists, all urging “the restoration . . . of citizens’ faith in the democratic process.” Editorial pages have supported campaign finance reform, including praise for the Shrink decision. But it is naive to believe the Missouri legislators aimed at reform. The history of campaign finance shows a parade, from the beginning, of sham reforms. For example, the first federal campaign finance statute, enacted in 1907 (still the law), bars corporations from making any contribution “in connection with” any election for federal office (and, since 1943, unions have been subject to the same limitation). But what of expenditures? It took only 38 years for Congress to discover this Olympian-sized loophole, and so in 1947, the limit was extended to cover expenditures. Why was the law so hollow for so long? Justice Anthony M. Kennedy’s dissent in Shrink presciently discussed soft money: “The Court has forced a substantial amount of political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits, limits which take no account of rising campaign costs.” On this point, Missouri’s experience is most instructive. First, consider how Missouri allows big contributors to get around the fa�ade of contribution limits. Missouri has: No limit on how much a person (or any entity) can give to political party committees or PACs. No “aggregate” limit on how much a contributor can give to all candidates and committees. No limits on how much any committee can give to other committees. On contributions to candidates, the low limit has one exception: a registered “party committee” can give to a candidate 20 times the limit on other contributors. But that multiple limit is another fa�ade: every party committee in the state can give that much to each state or local candidate. How many party committees are there in Missouri? Currently, there are 110 Democratic committees, 125 Republican, eight Libertarian, two Green and 11 other committees. During the 2002 election cycle, 58 Democratic, 64 Republican and nine others reported receipts, contributions and expenditures. Having every committee give to every candidate, of course, would require more money than is realistic. But in fact, surprisingly large sums do flow through the party committees. Since nonparty committees are covered by the low limit on contributions to candidates but unlimited in what they can give to other committees, the major nonparty committees give all or almost all their funds to the party committees. Missouri has no limits at all on contributions from or spending by corporations, unions, PACs or any regulated industry. In short, all Missouri does have are low limits on contributions directly to candidates-which Missouri makes so easy to avoid. Compare the four states closest in population: Maryland, Tennessee, Washington and Wisconsin. Each has a vastly different regulatory scheme. In Missouri, the role of party committees has grown. In the other states, party committees are more limited and their role has shrunk. Missouri’s purported reform with contribution limits has resulted in a system that merely shifts funds through party committees. A comparison of dollars flowing through state campaigns there and in the other four states shows a marked increase in total contributions by party committees in Missouri. Such contributions decreased in the others. The court missed this fundamental reality. It is to be hoped that it will not make the same mistake in the McCain-Feingold case by overlooking the potential for a sham regulatory scheme. Roy A. Schotland is a professor at the Georgetown University Law Center, where he teaches election law.

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