The way it's typically portrayed in the media, campaign finance reform is a push to stop big companies and other wealthy interests from buying influence by funneling huge "soft-money" contributions to federal candidates through their political parties. And, oh yes, there's something in there about barring the use of corporate and union money to sway elections through "sham issue ads." And something about more disclosure of election-related spending.
You would hardly know from most of the coverage that both the Shays-Meehan bill, which self-styled reformers are struggling to bring to a vote in the House, and the Senate-passed McCain-Feingold bill would make it a federal crime for any association of citizens (other than a political action committee) even to name a candidate for Congress much less to criticize or praise him or her in an ad broadcast in his or her district or state within 30 days of a primary or 60 days of a general election.
It would, for example, be illegal for the American Civil Liberties Union, or the National Right to Life Committee, or the NAACP, or the Sierra Club, or a gay-rights group to say "Shays-Meehan was a mistake"—or "Please write to urge Rep. Shays [or Rep. Meehan] to vote against human cloning"—in an ad to be broadcast within 60 days of the November 2002 election in the district of either Christopher Shays, R-Conn., or Martin T. Meehan, D-Mass.
This is such a frontal attack on the rights of ordinary citizens to band together to express their views on legislative and political issues that the more-sophisticated Shays-Meehan backers do not even pretend to believe it is constitutional. A greater affront to the First Amendment's core purpose of protecting uninhibited, robust and wide-open criticism of government and government officials could scarcely be imagined. Yet campaign reform cheerleaders in the media treat this blackout on pre-election speech as a mere awkward detail, to be noted in passing, and in euphemistic terms, if at all. Meanwhile, of course, the major media themselves—with vastly more money and power than the citizens' groups to be censored—would remain exempt from this and all other campaign finance regulations.
How did such an indefensible provision find its way into McCain-Feingold and Shays-Meehan? Are Common Cause, the big newspapers, John McCain, and the rest of the campaign reformers really itching to censor the likes of the NAACP and the Right to Life Committee?
Not exactly. McCain did say in December 1999 that "if I could think of a way constitutionally, I would ban negative ads." And many in the media do like the notion of elevating the level of campaign discourse by drying up sources of funding for negative attack ads by "single-issue groups." But McCain and his closest allies did not seek quite as extreme a blackout on pre-election issue ads as they got. Nor did most of the media and other interest groups championing new campaign finance restrictions.
These crusading corruption-busters are driven mainly by understandable disgust at the abuses of soft money by influence-peddlers and shakedown artists; by their zeal to close off every other channel (including independent groups) through which big business might seek to influence elections—excepting big businesses that own media companies, such as General Electric (which owns NBC), Disney (which owns ABC) and Microsoft (which co-owns MSNBC)—and by their desire to force wealthy individuals to disclose all election-related spending.
But they find themselves in an alliance of convenience with those in Congress who are willing to ban soft money only if they can also muffle their own critics—especially independent citizens groups—as part of the deal. And many in the media seem to see the evisceration of citizens groups' First Amendment rights as mere collateral damage inflicted in pursuit of a larger cause. Eventually, media supporters suppose, the courts will clean up the worst excesses. Besides, one major effect of muffling independent citizens' groups (along with companies, unions, and political parties) would be to enhance enormously the relative power of the media. And the media can live with that.
McCain-Feingold's issue-ad provisions were a bit less draconian when introduced early this year (as the "Snowe-Jeffords proposal") than they are now. While the original bill would have barred business corporations and unions from buying pre-election issue ads, it would not have barred all nonprofit citizens groups from doing so. At least in theory, certain tax-exempt nonprofits could buy pre-election issue ads naming candidates as long as the groups used no corporate or union money and disclosed both their expenditures and the identities of all donors of $1,000 or more.
But these funding restrictions and disclosure requirements fly in the face of the Supreme Court's seminal 1976 ruling in Buckley v. Valeo: "So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views"—and to use large corporate, union, and individual donations without filing any reports or disclosures.
The Snowe-Jeffords language in McCain-Feingold would have a major chilling effect on the speech of citizen groups that want to buy issue ads: Virtually all of them accept contributions from corporations and unions as well as individuals, and thus would have to pay lawyers and accountants to set up separate, segregated funds to solicit individual contributions for pre-election issue ads—even when the ads' primary purpose was not to electioneer but to support or oppose pending legislation. Under another provision of McCain-Feingold and Shays-Meehan alike, groups would also risk falling into the trap of illegal "coordination" if they ever touted (or even mentioned)—in any public communication (print or broadcast), at any time of year—a member of Congress with whom they have worked or even had fleeting contacts on legislative issues.
And while compelled disclosure has the benefit of preventing the super-rich from hiding behind a cloak of anonymity while making huge, de facto campaign contributions in the form of issue ads (many of them unfair or misleading), it also has substantial costs. Some donors who give $1,000 to independent groups—especially groups focusing on sensitive issues such as gay rights—have good reasons to guard their privacy or to fear harassment and retaliation if publicly associated with ads criticizing a powerful politician. In some cases, "anonymity is a shield from the tyranny of the majority," as the Supreme Court said in a 1995 decision striking down Ohio's ban on distribution of unsigned election-related leaflets. "Disclosure alone would be a prohibitive barrier to even slightly controversial groups, let alone" the ACLU, NAACP, and others that might want to run issue ads, says Brooklyn law professor Joel M. Gora, who works with the ACLU on campaign reform issues.
Onerous as they are, the Snowe-Jeffords curbs on issue ads were not tough enough for Senators such as Paul Wellstone, D-Minn. He proposed to bar independent groups (excepting political action committees) entirely from buying issue ads targeted to voters in a district or state where a named candidate is running. Perhaps Wellstone was thinking ahead to next year, when groups supporting term limits might be tempted to run ads criticizing him for breaking his promises not to seek re-election in 2002. The Wellstone amendment would make such ads illegal.
McCain and his co-sponsor, Russell Feingold, D-Wis., opposed the Wellstone amendment, warning that it was unconstitutional and a "bill killer," as Feingold put it. Meanwhile, key Republican opponents of McCain-Feingold mischievously voted with Wellstone so as to make the McCain-Feingold bill's constitutional problems even more blatant. Despite this dubious pedigree, Shays and Meehan have included a provision much like Wellstone's amendment in their own House bill.
What will happen if Wellstone's monstrosity is enacted along with Snowe-Jeffords and the rest of McCain-Feingold-Shays-Meehan? It is entirely possible (although far from assured) that the Supreme Court would uphold the ban on soft-money contributions to parties. The Court seems almost certain, on the other hand, to strike down the Wellstone amendment. And if the Justices adhere to Buckley's sweeping protection for all issue ads that stop short of explicitly urging a vote for or against a named candidate, they would also strike down both the Snowe-Jeffords restrictions on issue ads and the dangerously vague fallback provision (the Specter amendment) that is designed to spring to life if the Wellstone amendment goes down.
Then the joke would be on those members who voted to ban soft money only because they thought they were getting some protection against attack ads as part of the bargain.
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