John McCain's come-from-behind bid for the presidency is being damaged by the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold bill.
The workings of McCain-Feingold and the Democratic Party's huge fund-raising advantage have left Mr. McCain debilitatingly dependent on the $85 million in taxpayer financing he received last month. The Politico newspaper reported yesterday that Mr. Obama is outspending the combined McCain campaign/Republican National Committee campaign effort by as much as 8-1, and that probably understates Mr. McCain's disadvantage.
In the first three weeks of September, Mr. Obama ran 1,342 television commercials in the Washington media market, which includes Northern Virginia, a hotly contested area of a battleground state. By comparison, Mr. McCain ran just eight - an advantage of more than 160-1 in Mr. Obama's favor. Unsurprisingly, Mr. McCain now finds himself in the embarrassing position of searching for loopholes that would enable him to circumvent the very legislative Frankenstein he created.
McCain-Feingold limits donations to no more than $2,300 for individuals contributing to a candidate's primary election campaign and another $2,300 for the general election. But arguably the most disturbing aspect of the bill was its prohibition on the ability of labor unions and corporations from running television advertisements within 30 days of a primary and 60 days of a general election - in other words, when it mattered most.
Back in 2001 and 2002, when McCain-Feingold was being debated, this editorial page opposed the bill as an unconstitutional abridgement of Americans' First Amendment freedoms. Mr. McCain joined many Democrats in dismissing these concerns, arguing that his legislation was necessary to help "clean up" politics and prevent special-interest groups (i.e., the American public) from exerting undue influence on elected officials.
In 2004, Wisconsin Right to Life produced a number of television ads urging state residents to contact Wisconsin's Democratic senators, Russ Feingold, (Mr. McCain's partner and cosponsor of the 2002 bill) and Herb Kohl, and tell them not to filibuster President Bush's judicial nominations. But that posed a legal problem for the right-to life group: Mr. Feingold was running for re-election, and its proposed ad was declared an illegal "electioneering communication" because it referred to a candidate for federal office, Mr. Feingold. As columnist George Will pointed out, this would have been the perfect time for Mr. McCain to try to back away from the precipice and say that he never had any intention to ban such political speech. Alternatively, Mr. McCain could have remained silent. Instead, Mr. McCain filed a Supreme Court brief saying that this was exactly what he had in mind. The Supreme Court ruled against Wisconsin Right to Life, upholding the most onerous, intrusive interpretation of the law.
Four years later, as his campaign's financial situation has become increasingly dire, Mr. McCain has apparently developed a very different perspective on the bill he touts as one of his greatest legislative achievements. Reporter Jim McElhatton of The Washington Times wrote in May about the fact that Mr. McCain was appearing at fundraisers across the United States where donors could legally donate up to $70,000 each to help him win the presidency through a group set up jointly by his campaign and the Republican Party. But, financially at least, he remains at a huge financial disadvantage to Mr. Obama and the Democrats. For all of his talk about the virtues of public financing, Mr. Obama - understanding full well that he could out-fundraise Mr. McCain - decided to forego public financing of his own campaign. And Mr. McCain, by opting for public financing, lost a golden opportunity to benefit from the popularity of his running mate, Sarah Palin.
Mr. McCain's political situation right now should be a cautionary tale to all politicians who use the heavy hand of government to curtail American liberties.