In 2002 the McCain-Feingold bill was signed into law. The legal monstrosity alledgedly seeks to keep the pernicious influence of "soft money" out of federal elections, preventing many common types of political speech from being bought using--gasp!!--unregulated money. Aside form the largely anti-American concept of political speech restrictions, the one big restriction is on electioneering communications, that is speech designed to influence and election or in FEC language, promote, attack, support or oppose (PASO) a candidate for elective office.
The problem with PASO (aside from some not insignificant definitional issues) is that candidates for federal elective office are currently working on federal legislative issues. They are holding hearings, issuing legislation, conducting votes and otherwise (supposedly) conducting the business of the nation. While we, as individuals, can continue to call and write our representatives, various interest groups cannot call our attention to issues under consideration. It is the rare individual who can tell you what Congress is doing on any one given issue and thus we rely upon interest groups to do so. However, starting today, those very interest groups, upon whom we all rely, are no longer capable of airing ads that urge legislative action. The rationale, as Sager put it:
The logic behind these restrictions is that ads about particular bills in Congress might really be "sham-issue advertising" - with the real aim of electing or defeating a candidate for office. And, therefore, the money used to buy those ads might really be an illegal and unregistered campaign contribution.Now some writers have gotten in wrong. it is not that these groups can't run ads, they can. But in order to do so they must use PAC money, money that is regulated under federal campaign finance laws.
But the years since McCain-Feingold's passage have shown that, whatever supposed risk of corruption may lie in allowing issue ads to run unfettered, there's simply no way to regulate unwanted speech without restricting perfectly legitimate speech.
Plus, there's a tremendous arrogance in the idea of even trying to determine what speech is legitimate and what is unwanted. Who gets to decide? The answer is simple: Incumbents (a k a congressmen) do. And their only agenda is to hold onto what they've got: their incumbency.
The FEC tried to grant a limited exemption, but failed last week. But a limited exemption is not what is necessary, but rather a wholesale reassessment of our campaign finance laws in this area. Lobbying is not campaign finance. Lobbying is a protected First Amendment right.
Congress shall make no law...abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.But McCain-Feingold is just such a law.
There are cases, two of them in fact, brought by the Wisconsin Right to Life organization who have in succsssive elections sought to criticize Sens. Feingold and Kohl on issues of concern to them. However, their lawsuits are still pending in the court system and any resolution is unlikely before the election.
So for yet another election cycle, we are faced with a severly limited speech right that does not favor fair play--only incumbents. Not since the Alien and Sedition Acts of the late 18th Century, a stain on the early American history, have we faced such restrictions on our ability to criticize the government and the representatives who are, after all, beholden to our votes to keep them in office. If we can't hear both sides of the story, how can we as voters balance their desire for re-election with our need for effective representation.
The good news, such that it is, is that the Alien and Sedition Acts were repealed and hopefully so too will McCain-Feingold.