A clean win for campaign finance law

The big shots among us and their enablers have abundant reasons for cooling it: There remain many ways to use money to secure political influence at the expense of those who don't have ready gobs of cash.

And those who think curbing big shots is good public policy will still have to work harder and longer to give citizens the same political footing as special interests and factions.

But for a change, a pivotal Supreme Court decision is less a question of law than of fact. This 5-4 Supreme Court decision turned not on the splitting of a constitutional hair by the pivotal justice but by a judgment on whether the raising of unlimited cash by political parties and their candidates is a good or a bad thing. That made the ruling decisive, regardless of the vote.

Using the case's factual record, as well as the determinations Congress made in passing campaign finance reform, Justice Sandra Day O'Connor concluded that there was indeed overwhelming evidence for the simple proposition that "soft" money presents a direct danger of corruption or the appearance of corruption.

Those are the facts, she decided, and that made what Congress did two years ago constitutional; the rest of us think it was also wise.

Having judged that the legislators acted properly, Justice O'Connor also decided, again letting facts guide her, that it made no sense to ban soft money from the front door in federal campaign only to let it in a side door just before an election, when the corruption danger can be even greater.

On that basis, out went one of the most ridiculous dodges ever seen -- the creation of phony organizations on paper to produce electioneering TV commercials thinly disguised as "issue" ads, all underwritten by big shots and private interests.

This redeems the original purpose of public action against private influence -- nearly a century old and a product of the progressive movement that President Theodore Roosevelt championed -- no business money (and eventually no labor union money) in campaigns.

It also delivers a severe setback to the movement on behalf of influence peddling that adopted the language of the First Amendment. For a generation, its adherents sold the idea that campaign cash was seeking access not to decision makers but to the public square itself, and thus was entitled to "free speech" protections.

Their vision, articulated by such conservative legal figures as Ken Starr, was of a political world where the flow of money was unrestricted and officially deregulated, but subject to immediate public disclosure.

That vision, however, suffered under the weight of evidence. In showing that Congress had more than a good-faith basis in fact for its legislation, majority opinion writers O'Connor and Justice John Paul Stevens cited testimony from lobbyists about what is really going on in the system, and facts like my favorite: More than half of the soft money donors in the 1996 and 2000 elections gave substantial sums to each political party.

The loophole search will of course go on forever. The current battle to watch involves new groups of partisans raising unlimited cash nominally apart from the parties and campaigns. It is worth watching, because as all members of the court majority noted, the regulatory purpose here is not to ban money but to ban the most egregious form of fund-raising.

That emerging issue, however, is a reason for Congress to take the most obvious next step in the wake of the decision -- namely to finally give the system a functional watchdog, which the existing Federal Election Commission decidedly is not.

For a decade, the opponents of reform have established a remarkable track record of bluster and misstatement, designed to create a false atmosphere of inevitability about their vision. They told us reform legislation could never pass a Democratic, much less a Republican Congress. Then they told us the federal courts would never uphold such legislation. Then they told us that even if it happened, it wouldn't change anything.

This cynicism now stands exposed. Nirvana has not been achieved, but after 18 months in provisional operation, reform definitely has occurred. It was never really about free speech; the real issue was expensive speech.

Thomas Oliphant's e-mail address is oliphant@globe.com.