When the Supreme Court, 5 to 4, declared the McCainFeingold campaign finance reform legislation constitutional on December 10, there were hosannas from Common Cause, New York University’s Brennan Center for Justice, and other goodgovernment enclaves.
The Washington Post called it “one of [the Supreme Court’s] most important decisions in a generation.” The New York Times’ editorial page also joined the celebratory chorus with the headline: “A Campaign Finance Triumph.” E. J. Dionne of the Brookings Institution, also a liberal columnist for the Washington Post, crowed: “The Supreme Court has declared that we are entitled to something more than the best democracy money can buy. In so doing, it has struck a blow for freedom.”
And former Solicitor General Seth Waxman, a leading lawyer at the Supreme Court for the “reformers” in this case, McConnell v. The Federal Election Commission, told National Public Radio: “What the Supreme Court said today resoundingly is Congress is not handcuffed by the First Amendment from doing what it takes to restore the confidence of the citizens in the operation of our republic.”
In cold, constitutional impact, what the Supreme Court actually did was to, by itself, tightly handcuff the First Amendment. Dissenting Justice Anthony Kennedy got to the chilling core of McCainFeingold, calling it by its formal name: “The Bipartisan Campaign Reform Act makes it a felony for an environmental group to broadcast an ad, within sixty days of an election, exhorting the public to protest a Congressman’s impending vote to permit logging in the national forests.”
Justice Clarence Thomas, one of the Court’s foremost, but largely uncredited, paladins of the First Amendment, was also properly indignant: “[The law] cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.”
Along with the National Rifle Association and the National Right to Life Committee, the American Civil Liberties Union tried mightily to defeat McCain-Feingold. Mourning its failure, the ACLU’s executive director, Anthony Romero, said: “The decision will do far more to restrict political speech than to curtail the influence of money on poltics.”
In this threnody for Free Inquiry on the unintended consequences of victories by the righteous campaign finance reformers, I will concentrate on the most flagrant abuse of the First Amendment in the new law, although there are other sections that also limit the First Amendment.
The law targets “issue ads” by such organizations as the ACLU, the Sierra Club, and the National Rifle Association. These publicinterest groups are barred from broadcasting on radio or television any ads that refer to specific candidates for federal office, very much including presidential candidates, within thirty days before a primary or sixty days before a general election.
Last spring, at a conference of journalists in Boston, Congressman Martin Meehan (DMassachusetts), one of the most vigorous promoters of McCainFeingold, was asked how these specific time frames were selected. “Because,” Meehan said logically, “that’s when people are most interested in elections!”
This gag rule is so broad and vague that—as the majority Supreme Court opinion opaquely notes—the law will be violated even if “the advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.” Is everyone clear?
However, very rich individuals can spend any amount from their own funds to pay directly for any amount of broadcast ads for or against a candidate at any time—if they don’t contribute funds for ads to a candidate, a political party, or any of the independent advocacy organizations covered by this law. A Bill Gates or a George Soros, therefore, has much more expansive First Amendment rights than those of us who need organizations to amplify our views.
It is possible, however, for the ACLU or an environmental group to criticize a congressman or the president within the thirty or sixtyday limit if they do so with a PAC, a political action committee. But then, these organizations, under the law, have to provide the names of all those who contributed more than $1,000.
In his dissent, Justice Thomas tried to remind his colleagues on the Court that the American tradition of anonymous speech began before the Amer ican Revolution, directly spurred it, and has continued. Thomas cited McIntyre v. Ohio Elections Commission (1995), in which his concurring opinion stated: “The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.” And the Supreme Court emphatically made the same ringing First Amendment point in NAACP v. Alabama (1958).
If, for example, a contributor to the National Right to Life PAC works for an employer who is bristlingly prochoice, would he or she want the contrary view spread out on the public record for the boss to see? And why should the government know my voting preferences—to be included in the converging databases it scours for whatever reasons?
In an unsuccessful brief to the Supreme Court in this case, the AFLCIO revealed—and I’ve seen no mention of this in any media—how extensive the impact of this gag rule will be on political speech in the 2004 presidential election:
Beginning 30 days before the first primary or caucus . . . December 14, 2003 . . . Section 203 (of McCainFeingold) will criminalize broadcast references to the President in a series of geographic blackouts that will continuously ripple through the Nation, blocking every broadcast outlet, wherever located, whose signal can reach 50,000 persons in an upcoming primary or caucus state until June 8, 2004. . . .
This blackout will become national in scope on July 31, thirty days before the August 10–September 2 Republican National Convention . . . and it will then continue without interruption throughout the remaining 60 days until the November 2 election.
Thus, from July 31, 2004, until the election, it will be a crime for unions, corporations, or incorporated nonprofit organizations to pay to broadcast any “reference” to the president by “name,” “photograph,” “drawing,” or other un ambiguous means anywhere in the United States. A nonprofit organization could break out of this enforced silence by, as I noted, forming a PAC and telling the government and everyone else the names of those individuals who contributed to the ads.
Does anyone believe James Madison, the principal writer of the First Amendment, would have regarded this Supreme Court ruling, validating McCain-Feingold, as even remotely constitutional?
If this Supreme Court were concerned with its First Amendment precedents, it would have recalled the high court ruling in NAACP v. Button (1963): “Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association.”
How, then, can E.J. Dionne, the Washington Post, the New York Times, et al. believe that, in McConnell v. Federal Elections Commission, this Supreme Court has—as in E.J. Dionne’s salute—“struck a blow for freedom?”
Nat Hentoff is a regular columnist for the Village Voice and the Washington Times, a United Media syndicated columnist, and the author of Living the Bill of Rights (University of California Press, 1999) and The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2003).