John McCain's War on Political Speech

How the Arizona senator and other campaign finance reformers use the law to muffle critics and trample the First Amendment.

During Bradley A. Smith's legendarily testy 2000 confirmation hearing for a slot on the Federal Election Commission (FEC), senators piled on the insults like pork for home-state contractors. None were more effusive in their outrage than the Glimmer Twins of campaign finance reform, Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), whose eponymous legislation, also known as the Bipartisan Campaign Reform Act of 2002, has helped usher in a repressive age of limits on explicitly political speech.

Putting Smith, a Harvard-trained lawyer who was then 42 years old, on the commission responsible for making sure campaigns followed the law would be "akin to confirming a conscientious objector to be secretary of defense," thundered McCain. "Smith on the FEC would really be a case of the fox guarding the hen house," chimed in Feingold. Al Gore, who as vice president ruled over the Senate, sniffed that Smith was "unfit for office" despite an enviable record of scholarly publications. Yet Smith, whose nomination was strongly supported by Sen. Mitch McConnell (R-Ky.), not only passed senatorial muster but went on to serve as chairman of the FEC before resigning his post this year.

What follows is an edited transcript of an April 18 speech that Smith delivered at Capital University in Columbus, Ohio, as part of the George H. Moor Chair Lecture Series. Smith, who first joined the law faculty at Capital in 1993, has returned to teaching law there after resigning his FEC post in August.

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Polls consistently show that campaign finance reform is an extremely low priority for most Americans. It's not an issue that Americans wake up thinking about, even while pondering politics. It may seem like an obscure regulatory system that has very little effect on our daily lives, or even our political lives. But it's an assault on the First Amendment and a transfer of power from citizens to incumbent politicians, one that doesn't address far more serious conflicts of interest, including those of politicians who bang the campaign finance drum the loudest. As I step down as chairman of the Federal Election Commission, I fear that the regulatory machinery set in motion by Sens. John McCain and Russ Feingold will be used to further grind down the free expression of individual citizens.

Before I discuss this, here is a very limited overview of what we call the limits, prohibitions, and reporting requirements of the Federal Election Campaign Act, or FECA.

FECA's provisions create a very complex matrix that depends on who is giving to whom. But to oversimplify, individuals can give a candidate no more than $2,200 per election; a political action committee (or PAC), which is merely a group of people pooling their small contributions, can give up to $5,000 to a candidate per election; and an individual can give up to $5,000 to a PAC per year. There are other limits on how much you can give to political parties, and there are overall limits on how much a person can give in a two-year period, but to keep this simple I want to focus on contributions by people to candidates. The list of prohibitions also includes bans on direct contributions by corporations, labor organizations, federal contractors, or foreign nationals to candidates and committees. Additionally the law prohibits the conversion of campaign funds for personal use, and then there are a wide variety of reporting requirements, things that have to be reported to the federal government, including the name, address, and occupation of donors contributing over $200--creating a sort of federal database of citizen political activity.

In the legislative record there is considerable evidence that many supporters of McCain-Feingold specifically wanted the law to silence criticism of their own performance in office. The act includes a provision that prohibits most citizen groups, such as the National Rifle Association, the Sierra Club, and Planned Parenthood, from making any broadcast advertisements within 60 days of an election that even mention a candidate for federal office.

You can easily find quotes from across the political spectrum explaining why members of Congress find the speech of these citizen groups distasteful. But for brevity's sake, let's focus on Sen. McCain. These groups, he once said, "often run ads that the candidates themselves disapprove of." What a horrible thought: citizens running ads that candidates disapprove of.

Sen. McCain went on: "Further, these ads are almost always negative attack ads, and do little to further beneficial debate and healthy political dialogue." Now, when Sen. McCain called my colleague on the FEC, Ellen Weintraub, "corrupt" merely because she disagreed with him on the proper interpretation of the law, I don't think that necessarily promoted healthy political dialogue. But should he be banned from saying it? No.

In his brief to the Supreme Court, Sen. McCain said, "These ads are direct, blatant attacks on the candidates. We don't think that's right." Well, I'll bet they don't. But the question is why we, as citizens, should be banned from having groups to which we belong, to which we've contributed money, which represent us and our beliefs, run ads that criticize officeholders, simply because the ads are "negative" or expose things about candidates that the candidates would rather not have exposed.

The odd thing is that we approach restrictions on political contributions on the theory that elected officials will tend, both in actuality and appearance, to place their personal interests in retaining office ahead of the public good, and shape public policy in the interest of campaign donors, even when those policies are opposed by their constituents and perhaps even themselves. And yet, in order to combat this alleged problem, we turn around and suggest that these same elected politicians should be given great deference because surely they would not pass campaign finance rules in order to handcuff their challengers. Of course they would have only altruistic motives in passing this kind of law.

Do Contributions Get Results?

Do campaign finance rules improve government ethics? In theory, they exist to prevent influence peddling. There is another angle from which we might talk about political contributions, and that is to presume that the giving is not voluntary, but rather the result of extortion by officeholders. I think there is some anecdotal evidence to support this view, and that it is more credible than the notion that corporations are trying to buy influence. There have been statements by executives who felt they were being shaken down; some episodes in which executives or others interpreted ambiguous public statements or letters by politicians as veiled threats; and incidents in which a successful corporation without a history of political giving suddenly opened up its checkbook after being subjected to a seemingly senseless regulatory legal assault by the government--such as what happened to Microsoft a few years ago.

From an ethical standpoint I'm not sure it matters much whether one calls it "extortion" or "influence seeking." They are flip sides of the same coin, and they are based on the idea that contributions will buy results in Congress. But the empirical evidence simply does not support this thesis.

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