How McCain-Feingold Would Constrict Speech
Each new step down this road of restricting political spending and speech creates new problems and new inequities
It all sounds so clean, so wholesome, so righteous: Close the loopholes in our campaign finance laws. End what Sen. John McCain, R-Ariz., calls the "corrupting chase for 'soft money.' " Curb the influence of corporations and labor unions. Stop special interests from polluting our politics with "sham issue ads." Mandate greater public disclosure of political spending.
But in reality, the McCain-Feingold-Cochran campaign finance bill would make our politics worse, not better, by further entrenching incumbents against challengers, by weakening our political parties, by increasing the influence of wealthy individuals and huge media corporations, by stifling political debate, and by attacking the First Amendment's premise that political speech should be free and uninhibited, not hobbled by a maze of prohibitions and regulations.
We might be able to make our politics cleaner and fairer by supplementing private campaign funding with some form of public financing to help give voice to candidates and causes with scant financial resources. (More on that next week.) We will not achieve this by piling onerous new restrictions on privately funded speech.
Our experience with the current curbs on campaign contributions, which were enacted in the early 1970s, should be sobering. Spread through hundreds of pages of almost indecipherable legalese understood only by specialists, these curbs are filled with traps, technicalities, and opportunities for selective enforcement by politically appointed bureaucrats and judges. Their main impact has been to force federally elected officials and their challengers to spend a huge percentage of their waking hours soliciting ever-smaller (after inflation) contributions from ever-larger numbers of people. Meanwhile, incumbents have become harder to defeat, the influence of special interests has grown, voter turnout has declined, and public confidence in our political system has plunged.
The solution, say McCain and other "reformers," is to plug loopholes in the current laws—first and foremost, by ending the ability of wealthy individuals, corporations, and unions to circumvent the limits on "hard-money" contributions to candidates by giving their political parties unlimited sums of soft money to be spent promoting the candidates. This would make it harder for politicians to extort money from those who would prefer not to give. That is good. But it would also weaken the parties' ability to finance indisputably healthy grass-roots activities such as voter education, registration, and turnout drives, while spurring the many companies, unions, and individuals who want to be active in politics to take their money elsewhere. That is very bad.
The most obvious outlet for private money would be to fund so-called issue advertisements praising their preferred candidates and attacking their adversaries, either directly or by giving to one or more of the interest groups that buy such ads. These groups range from the Chamber of Commerce, the National Right to Life Committee, and the National Rifle Association on the right to labor unions, Planned Parenthood, and the Sierra Club on the left. Such a governmentally engineered shift of money and power from the parties—our most broad-based vehicles for citizen participation in politics—to single-issue groups and other ideologically driven organizations would warp our political discourse.
Not to worry, McCain and his allies say, we also have a plan to curb the financial clout of corporations, unions, and independent interest groups. This proposal (Title II of the bill) would severely restrict such organizations' spending on issue ads and other activities designed to disparage or promote federal candidates. Indeed, for some incumbents facing re-election battles, these provisions are the main attraction of the McCain-Feingold-Cochran bill. "We're totally defenseless against the juggernaut of huge, unregulated, undisclosed expenditures" by independent groups, Sen. Thad Cochran, R-Miss., who faces an election next year, told The Wall Street Journal.
This part of the bill would, in the words of Brooklyn Law School professor Joel M. Gora, who has long worked with the American Civil Liberties Union on campaign finance issues, "effectively silence a great deal of issue speech and advocacy by nonpartisan citizen groups, organizations, labor unions, corporations, and individuals." It would altogether bar for-profit corporations and unions from buying television or radio ads, or giving independent groups money to buy ads, that so much as mention—let alone criticize or praise—a federal candidate during the critical 60 days before an election and the 30 days before any primary. These are precisely the periods during which the public is most attentive to debate about political issues and candidates. The bill would also prohibit independent groups from buying such pre-election issue ads unless they set up unwieldy separate, segregated funds that shun corporate and union money and publicly disclose all individual contributions above $1,000.
An even more radical provision would expose such groups to possible legal sanctions if they do anything, at any time, that might help any candidate with whom they have "coordinated"—a term defined so broadly and vaguely as to encompass almost any contacts with candidates or their aides—in working on issues of mutual interest. So restrictive are these "coordination" rules that some of McCain-Feingold-Cochran's biggest champions might have run afoul of them had they been in effect during the 1999-2000 election cycle. Common Cause, for example, worked closely ("coordinated") with McCain in late 1999 on strategies for promoting his bill, while spending lots of its own soft money touting the bill (and McCain) to the public, at a time when McCain himself was putting campaign finance reform at the center of his presidential candidacy. Under his own bill, such routine political activities involving Common Cause and McCain might be deemed illegal corporate campaign contributions.
Nor is McCain-Feingold-Cochran's requirement that independent groups disclose the names of all donors of more than $1,000 for pre-election issue ads as innocuous as it may seem. It is, some independent groups argue, mainly for the benefit not of the public, but of powerful incumbents and other politicians who might use pressure and intimidation to deter people from funding issue ads the politicians don't like. Thus could a bill that purports to curb the influence of Big Money in politics have the effect of increasing the power of politicians to silence critics both big and small.
Fortunately, McCain-Feingold-Cochran's proposed restrictions on issue ads and independent groups will have trouble getting through Congress now that the AFL-CIO is opposing them—a major break with its usual Democratic allies. And even if enacted, these restrictions have little chance of surviving judicial review. They fly in the face of rules laid down by the Supreme Court in a long line of First Amendment decisions that guarantee that issue advocacy by independent groups, corporations, and unions will enjoy broad protection from all forms of official regulation, including public disclosure requirements.
In any event, any portion of McCain-Feingold-Cochran that manages to get through Congress and past the courts would not take Big Money out of politics. The bill would, rather, increase the relative power of those moneyed interests that remain unregulated. These would include individuals rich enough to finance their own campaigns, such as Ross Perot, Steve Forbes, and the four Senate candidates (all Democrats) who each spent more than $5 million of their own money to win their races. This group was topped by Jon Corzine's $60 million purchase of a seat to represent New Jersey. Power would also flow to the national news media, which are owned by huge corporations such as AOL-Time Warner and General Electric, are staffed by journalists with their own biases, and are busily clamoring for restrictions on the campaign-related spending and First Amendment rights of everybody else.
Those reformers who are most serious about driving Big Money out of politics see McCain-Feingold-Cochran as only a first, tiny step. They would also cap campaign spending by wealthy candidates—a step that would require overruling the Supreme Court's landmark 1976 decision in Buckley vs. Valeo. And a few reformers have asserted that, in the words of associate professor Richard L. Hazen of Loyola University Law School in Los Angeles: "The principle of political equality means that the press, too, should be regulated when it editorializes for or against candidates."
Each new step down this road of restricting political spending and speech creates new problems and new inequities, fueling new demands to close "loopholes" by adding ever-more-sweeping restrictions. How far might campaign finance reformers go if they could have their way? Was McCain serious when he said on Dec. 21, 1999, "If I could think of a way constitutionally, I would ban negative ads"? Shades of the Alien and Sedition Acts.
Politics will always be a messy business. Money will always talk. And the cure of legislating political purity and purging private money will always be worse than the disease.