"It's always a downside when you put in a provision you think is unconstitutional. That's just not good business."—Sen. Fred Thompson, McCain-Feingold supporter, March 26, 2001.
Does the just-passed McCain-Feingold campaign finance law violate the First Amendment? Pro-reform commentators accurately charge anti-reform cynics with "cavalierly" assuming the Supreme Court will void large chunks of the legislation. But the reformers themselves have shown a lockstep ideological discipline that would have made Mikhail Suslov envious. Here's Peter Beinart, E.J. Dionne, and the New York Times, all writing essentially the same defense of the "historic" (Times) law, free from any annoying doubts or ambivalence. Dionne says it's "obvious … that the bill is constitutional." Beinart belittles the whole idea that reform foes could have any sincere "attachment to free speech"—the First Amendment objection to the reform, he says, is simply "not correct." The Times dismisses civil libertarian groups like the ACLU who "incorrectly see a First Amendment violation in the McCain-Feingold law's reasonable rules …" (emphasis added).
"Correct," "incorrect"—this is the language of bullying certitude. Like most such behavior, it masks underlying insecurity. To understand what the pro-reform cadres are worried about, kausfiles has de-mothballed the Snipe-O-Meter, a crude-but-effective technology from the last century. As always, the target text appears in boldface, followed by context and perspective from the kausfiles staff:
"The court has made clear that limits on campaign contributions are constitutional because they are designed to curb the corruption that is inevitable when money plays too large a role in the calculations of politicians."—E.J. Dionne, Washington Post
The Supreme Court has indeed made clear that limits on contributions to candidates and their campaigns are constitutional. But it did this while making it equally clear that political spending by citizens that doesn't go to candidates, but is done independently, can't be limited. If I want to pay hundreds of thousands of dollars for an ad saying "Elect John McCain," that's my right, as long as I do it without consulting or conspiring with McCain's campaign. The justices even said limits on "contributions" to candidates were OK partly because citizens would still be "free to engage in independent political expression."
This distinction between "contributions" and "expenditures" is, in fact, the heart of Buckley v. Valeo, the Supreme Court's most important campaign finance reform decision. The court's rationale was that independent "expenditures" can express both the intensity and the basis of an individual's support, while with campaign contributions the "quantity of communication by the contributor does not increase perceptibly with the size of his contribution." You can disagree with this distinction—like my Slate colleague Michael Kinsley, I happen think it makes sense. But either way, the trouble with McCain-Feingold is precisely that it regulates on the wrong side of Buckley's contribution/expenditure line. It tries to restrict, not donations to politicians or their campaigns, but independent spending by nonprofit groups (like the Sierra Club)—as well as by unions and for-profit corporations—for TV ads.
"Unlike earlier efforts at campaign reform, this legislation was drafted with a close eye to past Supreme Court decisions ratifying Congress's right to regulate political money."—Dionne
While it's true the McCain-Feingold bill was drafted "with a close eye to past Supreme Court decisions," that wasn't the bill Congress passed.The original reform bill, if you remember (and how could you forget?) had two basic components. 1) It banned unlimited contributions—so-called soft-money donations—to the national political parties, a ban that's probably constitutional; 2) it tried to prevent corporations and unions from spending their (also unlimited) money to run independent TV ads if they mentioned a candidates name in the final weeks before an election. Why corporations and unions? They're both state-created institutions that enjoy special state-created privileges. There's an argument that, in exchange, they can be required to keep the hell out of election campaigns.
But McCain and Feingold were careful not to ban speech by mere collections of concerned citizens. Sierra Club-type "advocacy" nonprofits could run last-minute ads as long as they funded them with donations from individuals (not the traif corporations or unions) and disclosed the donors. The idea of McCain-Feingold, according to Norman J. Ornstein, the Beltway political expert who helped shape the bill, was relatively limited—to "take corporate and labor money out of the process and disclose large individual contributions."
Then along came Paul Wellstone, the Senate's most liberal member. Wellstone saw McCain-Feingold's protection of "advocacy" groups as a "loophole" allowing "special interests" to run last-minute election ads. (Since corporate and union money was already banished in the bill, Wellstone was presumably worried mainly about money from rich individuals.) Last year, Wellstone pushed an amendment to extend McCain-Feingold's ban on last-minute ads to nonprofits like "the NRA, the Sierra Club, the Christian Coalition, and others." Under the Wellstone Amendment, these organizations could only advertise using money raised under strict "hard money" limits—no more than $5,000 per individual. So if you wanted to give the Sierra Club $6,000 to denounce some environment-raping legislator, you'd be out of luck.
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
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.