Fix the McCain-Feingold Law

Oops—Can I Say That?

Jonathan Rauch | October 7, 2004

(Page 2 of 2)

Apologists for the law argue that groups can still broadcast their ads outside of election season; they can still run print ads; they can raise "hard money" for their ads; they can simply avoid all references to political candidates. All true, and all irrelevant. For the government to justify abridging a core civil right by pointing to other activities that are still legal is, shall we say, Putinesque.

In a case now pending, Wisconsin Right to Life has asked the Supreme Court to exempt grassroots lobbying campaigns from the law's "electioneering" rules. The FEC retorts that abortion is an issue in the Wisconsin Senate race, and so Wisconsin Right to Life's ads "will have an electoral effect."

Of course, the FEC is correct. Educating voters influences them, which is the whole point. "Electioneering" is not distinguishable from other forms of political speech, even in principle. Unfortunately, from this correct premise the FEC draws the wrong conclusion, which is that the law should restrict any "corporate" (read: group-sponsored) speech that might influence an election. Where that rule leads is amusingly illustrated by the FEC's political advice to Wisconsin Right to Life: Instead of saying "Contact Senators Feingold and Kohl and tell them to oppose the filibuster," just urge Wisconsinites to "call the U.S. Senate at 202-224-3121 and tell them to stop the filibuster." Wow, that's a zinger.

Better idea: Repeal the Wellstone amendment. That would lift the gag on nonprofits, while leaving certain reporting and accounting requirements in place. Or go even further, and repeal the BCRA "electioneering communications" restrictions altogether, returning to the pre-2002 law that let all concerned advertise to their heart's content, provided that ads refrained from explicitly supporting or opposing a candidate. A bill sponsored in the Senate by Saxby Chambliss, R-Ga., and in the House by Roscoe Bartlett, R-Md., would do just that.

Either way, fix the law before 2006. One election with a speech code is more than enough.

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Freak & Dud Aside « Left Coast Ledger links to this page. Here’s an excerpt:

…to the enormous risk that Fannie Mae and Freddie Mac pose to the housing market, the overall financial system, and the economy as a whole.” Setting aside McCain’s other train-wreck legislation, like McCain-Feingold and McCain-Kennedy, had the senator been elected president last year we would be seeing vastly a different approach to the reconstruction of the financial market in the aftermath of the cataclysmic…