John McCain is outraged that a big donor to George W. Bush is financing TV ads against McCain. The ads criticize McCain's environmental record and portray Bush as a pollution fighter. McCain says the ads are clearly false and sleazy and will backfire on Bush. McCain also says the ads prove the need for restrictions on ads by special interest groups. Both charges can't be true. If McCain can convince voters that the ads are false and sleazy, then there's no need for the government to punish Bush or his donor pal, Sam Wyly. The voters will punish them enough.
Wyly's ads, like other commercials aired against McCain by Americans for Tax Reform, the National Right to Life PAC, and the National Smokers Alliance, are "issue ads." They're not directly coordinated with the Bush campaign, and they don't explicitly tell you to vote against McCain. Therefore, under the Supreme Court's interpretation of the First Amendment, they're exempt from laws that limit how much money a donor can spend in a campaign. McCain wants to prohibit such ads within 60 days of an election. "The principle of a $1,000 contribution, the spirit of the law, is being violated," McCain charged on Meet the Press. "This is what I've been fighting against for the last several years in the way of campaign-finance reform."
Until he can restrict these ads, however, McCain intends to make them an issue. At rallies and in TV interviews this week, he has urged voters to "send a message" against "cronies of George Bush" who are using "dirty money" to "hijack the election." McCain rebuts Wyly's ads, arguing that Bush has given 81 pollution waivers "to contributors of his" who "raised him $1 million" and have "made the state of Texas the worst violator of clean air in America." McCain expresses confidence that voters will see it his way. "The message [of the ads] is, of course, ridiculous," he said on Meet the Press. "It won't sell, it won't wash, and the American people are going to figure it out, and I think they're going to figure it out before Tuesday."
Meanwhile, McCain is telling voters that Wyly is running the ads to repay Bush for sweetheart deals. On the Sunday talk shows, McCain repeatedly called Wyly and his brother—who have donated more than $200,000 to Bush's gubernatorial campaigns and are raising a similar amount for his presidential race—"cronies" of Bush who are "getting paid $1 million a year by the [Texas] education system." "Americans are going to be terribly upset when they hear that a couple of brothers in Texas have put $2,500,000 [into the ads] in total violation of the spirit of the $1,000 contribution limit," McCain predicted. McCain strategist Mike Murphy told the Los Angeles Times, "The slimy scam of the ad will ultimately be its message. … It will work to our benefit."
It's hard to see how McCain could prohibit the broadcast of Wyly's ads during an election without violating the First Amendment. The ads say that whereas "McCain voted against solar and renewable energy," Bush's "clean air laws will reduce pollution more than a quarter million tons a year. … Governor Bush: Leading so each day dawns brighter." Imagine lawyers for the U.S. government arguing in court that it's constitutional to restrict such characterizations. Imagine them trying to draw a linguistic line—e.g., against using the candidates' names or the word "leading"—that Wyly and his ad-makers couldn't circumvent with pictures and a few small edits. Imagine regulators chasing such campaign attack-messages from television to telephones to e-mail.
Fortunately, McCain doesn't need to ban these ads. He's already punishing Bush and Wyly—and giving pause to donors who might have followed Wyly's example—by fighting speech with speech. McCain is making the ads an issue. He's trying to convince voters that the ads are false and that Bush's relationship to the guy who's funding them is sleazy. If McCain fails to make this case, he'll lose, and rightly so. But if he succeeds, the ads will end up hurting Bush, and Wyly will pull them down.
Already the ads have put McCain back on track. They're refocusing the race on his best issue, campaign-finance sleaze. And they're smothering Bush's efforts to talk about his best issue, education. Saturday in Rochester, N.Y., Bush opened a news conference by saying, "Today, I want to spend time talking about education." Instead, reporters grilled him about Wyly. The papers buried Bush's education proposals under headlines such as "McCain Hits TV Ad Blitz From Texas" (Washington Post) and "McCain Puts Campaign's Focus on Ad by Bush Ally" (Los Angeles Times). After a similar grilling on Face the Nation, Bush groused, "Obviously, the ads aren't that helpful to me. I'm spending more time talking about ads than I am talking about my agenda."
If liberals will accept that special-interest issue ads can't and shouldn't be fought with restrictions on speech, conservatives ought to accept two other mechanisms that will help the targets of these ads fight them with speech. First, anyone who finances a political ad should have to disclose who he is. Initially, Wyly concealed his identity behind a front group called Republicans for Clean Air. Without knowing his identity, McCain couldn't have persuaded voters to distrust the ads and to hold them against Bush. In a campaign, as in a court of law, no contestant is entitled to win his argument. But every contestant is entitled to the basic evidence necessary to make his case. The law already requires TV stations to divulge who has paid for noncommercial ads. Exactly how much detail funders of these ads should have to reveal about themselves can be debated.
Second, when interest groups pour lots of money into ads against one candidate, the media ought to help that candidate fight back—not by making his case for him, but by giving him a platform from which to make it. Voters are entitled to hear both sides. Whether the candidate persuades them to see the quarrel his way is up to him and them. Conservatives might object that in playing this role the media will tend to target conservative interest groups and favor liberal candidates. That's probably true. But some such alliance of private organizations, no matter how imperfect, must help besieged candidates fight speech with speech, or the government will step in to impose silence.
McCain is right that many interest-group ads are sleazy. But universal restrictions aren't the answer. There is no such thing as "big money" or "special interests." There is only your money and my money, your interests and my interests. Maybe your ads are more truthful than mine. Maybe your money and your motives are cleaner than mine. If McCain thinks my ads are sleazy and misleading, let him make that case. But let him make the same case against yours.