"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.
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