Something almost without precedent in America will happen Thursday. That’s the day when McCain-Feingold — aka the Bipartisan Campaign Reform Act of 2002 — will officially silence broadcast advertising that contains criticism of members of Congress seeking re-election in November. Before 2006, American election campaigns traditionally began in earnest after Labor Day. Unless McCain-Feingold is repealed, Labor Day will henceforth mark the point in the campaign when congressional incumbents can sit back and cruise, free of those pesky negative TV and radio spots. It is the most effective incumbent protection act possible, short of abolishing the elections themselves.Earlier this week, the FEC deadlocked on a limited exemption that would allow for groups to air ads that were legislative in nature. The exemption from the electioneering communications rules (which prohibit mentioning a candidate by name in any context that promotes, attacks, supports or opposes that candidate within 60 days of a general election) carried lots of very strict, but common sense limitations, such as the ad must pertain to a pending legislative vote. The problem that these communications present is that they look an awful lot like those dastardly issue ads that had everyone up in arms.
How can this possibly be, you ask? McCain-Feingold — named after the law’s main advocates, Sen. John McCain, R-Ariz., and Russ Feingold, D-Wis. — bans all broadcast political advocacy advertising that mentions candidates by name, beginning 60 days before the election.
There have been various comments by others on the minutae of the deadlock, so I will leave that matter alone.
But Tapscott does frame the issue quite well. Not since the Alien and Sedition Acts of the late 18th Centry, has American government shut down such a vital aspect of speech, that of political speech aimed at our own representatives.
None of this would surprise Alexander Hamilton, who argued in “The Federalist Papers” that written guarantees of things like freedom of the press would be purposely misconstrued by ambitious politicians and used as a pretext to do that which the Constitution banned: “I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” That is just about exactly what has happened now with the First Amendment and freedom of political speech, thanks to McCain-Feingold.So what can we do? Well, as Tapscott says, campaign finance needs to be transparent, but it also needs to be fair. Political speech needs to be free, open and subject to no limitations save for libel and slander. A functioning democracy depends on it, like humans depend on air to breath.
By election day, it should be clear to all reasonable persons that McCain-Feingold was a serious mistake and, like Prohibition, ought to be repealed. But proponents of campaign finance reform have always been right about one thing — there is an incredible amount of money in politics and voters should know who it is coming from and to whom it is going. Thus, McCain-Feingold should not simply be repealed; it ought to be replaced with a new law that uses transparency in campaign finance rather than censorship in political expression.
Hat Tip: James Joyner at Outside the Beltway