It's pretty clear now where Buckley v. Valeo went wrong—it was in making a distinction between "issue advocacy" and "express advocacy." What were they thinking? Well, the court was trying to protect as much speech as possible by restricting the campaign finance laws to the narrowest possible area, namely speech that "expressly" advocates the election or defeat of a candidate rather than that which merely discusses issues. The idea wasn't that "issue advocacy" is a good thing while "express advocacy" is a bad thing. They're both good things—indeed, right after making the distinction the court said Congress couldn't suppress individual speech on either side of the line (a sure sign that the line didn't need to be drawn in the first place). How are you going to put into practice your views on "issues" if you can't advocate the defeat of the legislators who oppose your views on "issues?" That's democracy.
Yet the "issues advocacy/express advocacy" distinction has inevitably been twisted, by the Times and others, into some sort of condemnation of "express advocacy." (Want another example? Here's John Judis of the New Republic attacking "brazen private electioneering.") This distortion—the idea that it's somehow not full free speech for a citizen to say "Vote against Smith because he opposes the patients' bill of rights"—forms the entire basis for the Times' claim that Wellstone's amendment "is being done in ways the Supreme Court has expressly endorsed." It isn't. (The Times is … incorrect.)
"Framed … accurately—the new law sounds a little less menacing."—Washington Post editorial
That's the tag of the latest campaign finance editorial in the Post, a longtime McCain-Feingold booster. It's not what you would call a ringing endorsement—it fails, in fact, to actually express an opinion on the law's constitutionality, the ostensible topic of the editorial. (Suggested headline: "McCain-Feingold—Less Menacing Than You Thought!") The Post's relatively troubled, nuanced essay may be an early sign that reformist discipline is crumbling in the face of Wellstone's handiwork. Or it may simply reflect the general tone of the Post editorial page. That sort of doctrinal weakness would never pass muster at the Times!
"If you do not … you are going to have a proliferation of these organizations. Republicans for Clean Air, Democrats for Clean Air, People Who Do Not Like Any Party for Clean Air, Liberals for Clean Air, Conservatives for Clean Air, Citizens for Dirty Air—I don't know what it will be. Another example is the Club for Growth. This was an outfit that ran attack ads against moderate Republican congressional candidates in the primary."—Sen. Wellstone, arguing for his amendment on the Senate floor
Why is this scenario so scary to Wellstone and others? Sounds like a free country to me.
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