Capitol Letter: Moment Of Truth

The legislative term of art is drier than sawdust: "nonseverability." But as Sen. John McCain likes to say, "It's French for no campaign-finance reform." It's also the moment of truth for Senate Democrats who claim to support the McCain-Feingold-Cochran bill, which eliminates unlimited and unregulated "soft money" donations from unions and corporations. The measure is headed for a final vote late Thursday after a remarkable two-week debate.

But before the final tally, Senate Republicans are expected to offer an amendment that would weld the various provisions of McCain-Feingold into an inseparable whole. It means that if the bill became law, and the U.S. Supreme Court were to find any one part of it unconstitutional, the entire measure would be thrown out. Right now, the bill includes a "severability" clause-as does most legislation-that would keep it on the books even if certain parts didn't clear the constitutional bar.

Severability is a make-or-break issue because there are at least a couple of recent additions to McCain-Feingold that are widely thought to be unconstitutional primarily on First Amendment grounds. The most recent surfaced on Monday night, when Sen. Paul Wellstone, the liberal Minnesota Democrat, pushed through an amendment that would restrict political advertising by nonprofit advocacy groups like the Sierra Club and the National Right to Life Committee during the last 60 days of a campaign. The original bill established the ad restrictions only for labor unions and corporations, but Wellstone argued that it didn't go far enough. Yet many legal experts say that the Wellstone amendment is extremely vulnerable to legal challenge, and a nonseverability provision would quite likely doom the entire reform bill. In one of many collections of strange bedfellows produced by the debate, Wellstone was joined by 24 Republicans, including Sen. Mitch McConnell of Kentucky, the Senate's implacable foe of campaign-finance reform. McConnell, usually dead set against any measure that restricts campaign spending, was unabashed about his reasons for teaming up with Wellstone: to add a constitutionally questionable provision that could sink the entire bill in court were it tied to a nonseverability clause. "If this bill becomes law, it's going to end up in court, and you're looking at the plaintiff."

All of which makes the vote on severability critical.

"For those who want McCain-Feingold, there is only one vote, and that's to make it severable," says Sen. Dianne Feinstein, the California Democrat who helped craft a compromise with Republican Fred Thompson of Tennessee on Wednesday that raised the amount that individuals can contribute to campaigns, so-called "hard money."

The vote is expected to be close. Several moderate Republicans, including Olympia Snowe and Susan Collins of Maine and James Jeffords of Vermont, are expected to support severability. But an adviser to Senate Minority Leader Tom Daschle said Wednesday evening that support within the Democratic caucus for retaining severability remained "fluid." Some Democrats friendly to McCain-Feingold in past incarnations-when it was a virtual certainty to fail-now appear to be wobbling as the bill goes to the brink of final passage. Patty Murray of Washington, Tom Harkin of Iowa, Richard Durbin of Illinois and Robert Torricelli of New Jersey, all voted with McCain in October 1999 on an unsuccessful attempt to break a Republican filibuster.

Each is under some political pressure. Harkin and Torricelli face potentially difficult re-election campaigns in 2002, and may be reluctant to give up soft money, principally because the GOP has a deeper pool of well-heeled hard money donors who would now be able to contribute an aggregate of $37,500 to a federal campaign (up from $25,000). Murray is head of the Democratic Senatorial Campaign Committee, charged with raising money for Senate candidates. She argues that a severable version of the bill-one where a court voided restrictions on issue ads, for example-could leave her party exposed to conservative groups free to raise funds while Democrats remained bound by the soft money prohibition.

Party activists describe other senators as anguished about the prospect of relinquishing soft money, but who are now tethered by years of support for campaign-finance reform. "They're all boxed in by their rhetoric," says one former senior Clinton administration official. Their situation was complicated this week when the prospect of a presidential veto, which made support for McCain-Feingold a little safer for Democrats, seemed to recede. President Bush signaled that he was prepared to sign a campaign-finance reform bill-even one that included a soft money ban, which he has long opposed.

The key figure is Daschle, whose decision will provide some political cover for other members. He says publicly that he supports campaign-finance reform, but party activists say he would love to see McCain-Feingold disappear. A vote for nonseverability would probably achieve just that.