Because Wellstone's addition wasn't "drafted with a close eye to past Supreme Court decisions," McCain-Feingold backers saw the amendment as a poison pill, inviting the court to strike down their law. Both McCain and Feingold cast votes against it. "If I thought it was constitutional, I would have voted for it," McCain explained. But, in a highly embarrassing episode, Wellstone's amendment passed. (Some votes came from reform opponents who wanted to screw up the McCain-Feingold bill. But mainly Wellstone's win revealed a dirty little secret about campaign finance reform—it was the most unconstitutional parts of the bill that were most popular in Congress, precisely because they suppressed the last-minute TV ads that incumbent congressmen worry will be used against them.) The next day, the New York Times editorial page, reflecting the views of McCain-Feingold backers, expressed its anger at "[t]he amendment of questionable constitutionality passed by the Senate last night."
"The Senate must undo Mr. Wellstone's damaging amendment," ordered the Times.
"Anyone has a right … to spend their quota of campaign donations to finance ads that are intended to help one particular candidate or party. … The only thing the campaign finance reform law prohibits is spending in excess of federal campaign limits to pay for a campaign ad masquerading as something else."— New York Times editorial, April, 2002 (emphasis added)
The Senate didn't undo "Mr. Wellstone's damaging amendment." The amendment stayed in the bill, and is now a part of the U.S. Code that's being challenged in court. Did the Times continue to express its constitutional doubts? Did the Popular Front stick around after the Hitler-Stalin pact? No. New orders from CFR Central! The Times now righteously embraces the Wellstone Amendment. People who say what the Times said last year are now "opponents of reform" whose "arguments should be rejected." (Perhaps the hapless editorialist who had earlier opposed Wellstone was sent to some internal Times gulag, forced to perform hard labor formulating opinions on the Law of the Sea.)
"The opponents of [the campaign finance reform bill] are even more certain that it violates free speech in another way: by barring independent groups like the National Rifle Association and the Sierra Club from running ads mentioning specific candidates in the months prior to an election. And perhaps if it really did, they'd have a point. … All the legislation requires is that organizations pay for such ads with hard money … It can buy all the ads it wants; it just can't raise more than $5,000 per person per year …"—Peter Beinart, New Republic
Beinart's summary of the legislation, post-Wellstone, is accurate. But his dismissal of the free speech concern is … well, cavalier. Which America do you want to live in—one where citizens are free to join together to proselytize for causes they believe in, or one where they are free up to $5,000 and go to jail if they spend $5,001? The ACLU effectively dramatized the effect of the Wellstone Amendment by buying a radio ad in Illinois urging Speaker Dennis Hastert to bring a gay rights bill up for a vote—an ad that McCain-Feingold would make illegal. The Times dismissed the ACLU's stunt because such ads "are exceedingly rare in the days leading up to an election." Since when do we ban speech just because it's "rare"?
"Wealthy individuals can still buy ads mentioning specific candidates as well."—Beinart
This is true. Even after the Wellstone law, a single individual can still buy an independent ad saying whatever he wants. In 2004, if David Geffen wants to purchase, by himself, a million dollars of air time to broadcast a last-minute 60-second spot denouncing George Bush, John Ashcroft, and Jerry Falwell as homophobes, he can. But if two, or three, or 20 less-rich people want to form a nonprofit group to pay for the same ad, they are prohibited from spending more than 5 G's apiece. Why, unless you believe the ultra-rich don't have enough advantages, would you think this was fair?
"It is true that the law treats the press differently from other corporations; the limited restriction McCain-Feingold places on the NRA would not apply to The Post. But this is nothing new. … Importantly, the exemption protects the press only in its role as the press. If a newspaper wished to step outside this role and buy television ads supporting or opposing a particular candidate within 60 days of a general election, it, too, would have to use hard money."— Washington Post editorial
The New York Times has decided that the Wellstone Amendment "does not unduly burden free speech." Easy for them to say! That's because, as the Washington Post notes, free speech by writers for press organizations like the New York Times is conveniently exempted from the campaign finance laws. At least the Post attempts a defense of this special status, though it's a bit disingenuous. Would the Post need to "buy television ads" supporting a candidate? The Post owns television stations! It can run editorials "supporting or opposing a particular candidate" around the clock and not run afoul of Wellstone's law. But if its viewers want to get together to purchase some air time to respond, they are limited to $5,000 chunks.
"The court has long drawn a distinction between pure issue advocacy, which merits the highest level of First Amendment protection, and campaign ads, the financing of which Congress can regulate to protect the integrity of the electoral process."—New York Times editorial
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