Blindman's Rule [McCain Feingold Campaign Finance Reform and congressional ignorance]

Creator's Syndicate via Reason ^ | February 21, 2003 | Jacob Sullum

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February 21, 2003

Blindman's Rule

Congress discovers the perils of legislating in the dark.

By Jacob Sullum

The New York Times reports that Robert Matsui was "surprised by [the] fine print" in the McCain-Feingold campaign finance law. Matsui, the California representative who heads the Democratic Congressional Campaign Committee, confesses, "I didn't realize what all was in it."

Well, how could he have known? It's a complicated piece of legislation. You didn't expect him to actually read the bill prior to voting for it, did you?

Anyway, 60 senators and 240 representatives voted for McCain-Feingold, a.k.a. Shays-Meehan, a.k.a. the Bipartisan Campaign Reform Act. Surely at least some of them knew what all was in it.

Maybe not. In a story that is simultaneously hilarious and appalling, the Times describes how members of Congress are only now discovering, to their dismay, the requirements of the campaign finance restrictions they enacted almost a year ago.

"We sometimes leave our audiences in a state of complete shock," says a lawyer who teaches the intricacies of McCain-Feingold to Democratic legislators. His seminars elicit "a sort of slack-jawed amazement at how far this thing reached."

A lawyer who runs similar sessions for Republicans says, "There's an initial stage where the reaction is, 'This can't be true.' And then there's the actual anger stage."

That's a pretty good description of the average American's reaction upon learning that his elected representatives can't be troubled to familiarize themselves with the laws they pass. Instead they vote for a general idea, leaving the details to be worked out by administrative agencies and the courts. What they produce is not really law, in the sense of rules that people can reasonably be expected to understand and follow.

Consider the tax code. Have you done your taxes yet? How do you feel knowing that if you pose the same tax question to five experts, you're liable to get five different answers? The state of the law is such that not even the most honest and diligent filer can face an audit with confidence.

If you own or run a business, you have to guess at the meaning of such nebulous concepts as "reasonable accommodation" for the disabled and "hostile environments" that may constitute illegal sex discrimination. If you're a developer, you need to keep up with the ever-changing definition of "wetland." If you're an investor, you need to understand which conversations can subject you to "insider trading" charges.

It's only fair that members of Congress are now experiencing some of the fear and uncertainty they routinely impose on the rest of us. The Times reports that "members of both parties have been startled" to learn that McCain-Feingold violations are felonies carrying penalties of up to five years in prison.

"My message," says Rep. Thomas Reynolds (R-N.Y.), chairman of the National Republican Congressional Committee, "is, 'Don't be the first guy to find out if you go to jail.'" Matsui reports, "We have cautioned members: 'You have to really understand this law. And if you have any ambiguity, err on the side of caution.'"

Under McCain-Feingold, it turns out, actions that seem trivial and innocent—speaking at a fund-raising event, attending a conference, letting your name appear on an invitation—can be construed as felonies. Who knew? Unfortunately, that is not a rhetorical question.

Another aspect of the law that its supporters did not notice until recently is a requirement that candidates appear at the end of their attack ads to take responsibility for them. "I think it was a total surprise to people who don't read C.Q. with a yellow pen," says a Democratic media consultant. Apparently, it is unreasonable to expect members of Congress to read a publication as far afield from their concerns as Congressional Quarterly.

It is richly satisfying to see the anxiety that McCain-Feingold's backers have created among themselves. But we should not lose sight of the fact that the law affects many other people, including the political activists whose speech it squelches.

Some of the law's supporters, including President Bush, recognized that it was unconstitutional but figured the Supreme Court would sort things out. Something similar happened with the anti-terrorism legislation approved after the September 11 attacks, the final text of which was not even available to be read by those legislators who might have been inclined to do so.

In such cases, I'm not sure which is a worse abdication of responsibility: voting for a law without knowing what's in it, or knowing and voting for it anyway.

© Copyright 2003 by Creators Syndicate Inc.

Jacob Sullum's weekly column is distributed by Creators Syndicate. If you'd like to see it in your local newspaper, write or call the editorial page editor.

[Cicero]

;-)

[X_CDN_EH]

What do you think they are doing to us when they write legislation?

[Cicero]

Don't ask. I'm just about to sit down and start doing my income tax.

[redbaiter]

I'm plenty sore at Bush for signing that thing. I thought at the time it was a piece of cold calculation, that Bush knew it was wrong through and through but signed it to get McCain out of the way, figuring the Supremes would clean up the mess later. I still think so. But, all along I've been thinking, it just might be a clever stategery. Maybe, just maybe, I thought, when the Demos realize what McCain has done they'll turn on him for real, and McCain will be utterly alone and ostracized by his fellow Demo - well, you get the idea. And maybe the congresscritters will start reading some of the stuff they vote on.

[NewHampshireDuo]

I'd love to see any of the 4 sponsors get brought up on charges of violating this piece of trash legislation.

[StevieB]

From what I've read so far, it looks like McCain Feingold may actually hurt the Democrats more than the Republicans. I like the idea of it coming back and hitting them in the face.

Maybe history will record this as another instance of Bush strategery!

[speekinout]

The good thing about this bill is that it might finally expose what goes on in Congress. The reach of the Fed'l gov't is so far and wide that bills are written by staffers. Most of them are career hires. They do not answer to the electorate. Many of them have spent years working on the Hill, and we don't know what their agendas are. A newly arrived Sen. or Rep. knows so little that all they can do is defer to the staffers.
Until we are willing to constrict the powers of the Fed'l gov't, we will continue to see bills written by these anonymous staffers, and voted on by Sens and Reps who have no clue about what is in the bills they vote on.

[Cicero]

It's a safe bet that the staffers of liberal senators are farther to the left than their bosses. I don't think that's necessarily quite so true of conservative senators.

McCain seems to be a special case. I confess I'm ignorant of where his staffers come from and what their interests are.

[NonValueAdded]

I hate the bill and I hope the suit led by the NRA prevails.

That being said, I absolutely LOVE the "oh my G-d, what have we done" shock these fools are having.

Here is the icing on the cake ... didn't they put in a clause that if the SCOTUS strikes down a part of the law, the rest stands? Imagine if the NRA wins (I'd be astounded if they didn't), and the pols are left with all the other restrictions, mainly on themselves.

Yes, somebody pinch me! I must be dreaming!

[sarasmom]

Not a single US Senator makes LESS than five times my annual salary.And they use my tax dollars to pay thier wages.Now they claim they dont know what they are doing? This, after they voted themselves a pay-raise it will take me 6 years to earn, and most of which will go back to taxes before I see it?

Taxation without representation, anyone?

[speekinout]

Most of the staffers are left leaning. Congresscritters on both sides hire staffers with experience (they almost have to. What good is it to hire a novice to go against an experienced staffer?)
Congress was leftist until 1997. It's likely that there are some Conservative staffers now, but I'd guess that they are still in a minority.
Many, if not most, Hill staffers try to make it a career job. The more experienced ones are most likely Leftist, no matter what their bosses think.

[Congressman Billybob]

Thanks for posting this. I am still waiting for the three-judge trial court to rule, so I can open up the guns against CFR in the Supreme Court. As for this specific article, a former Congressman wrote a book about seven years ago, entitled, "What Makes You Think We Read the Bills?"

Congressman Billybob

[Free the USA]

http://www.freerepublic.com/perl/bump-list

[Cicero]

You're welcome. And good luck with this atrocity.

[zeugma]

I'd be willing to put serious money down that not a single congresscritter will ever be prosecuted under this law. Low level staffers and consultants, maybe, but no sitting congresscritters.