- The Washington Times - Monday, March 19, 2001

"If I could think of a way constitutionally," Republican Sen. John McCain once said, "I would ban negative ads." That is all one needs to know to understand the motivation underlying Mr. McCain's efforts to eviscerate the First Amendment's guarantee of free speech and to emasculate modern America's political party system.

Mr. McCain publicly regrets only that the U.S. Constitution prevents him and like-minded political incumbents from passing legislation that essentially disarms their critics. He would prohibit Americans who disagree with incumbents and their voting records from exposing their voting records to public scrutiny through the use of issue-advocacy ads that portray lawmakers negatively. A more brazen attempt to protect incumbents from criticism is hard to imagine.

Appearing on NBC's "Meet the Press," Mitch McConnell, Republican of Kentucky, also cited the bill's aid to incumbents: "[F]undamentally what [Mr. McCain] does is not take money out of politics. He takes the parties out of politics by federalizing the two parties, taking away 35 to 40 percent of their budget, and, in effect, diminishing their ability to do what they do best, which is to help challengers.

"I mean, political parties … are the only entities out there that will really go to bat for a challenger. This bill takes the parties and takes them right out of the game."

If the Constitution has prevented Mr. McCain from banning critical ads, it hasn't yet stopped him from pursuing the same goal by other means. First Mr. McCain threatened to block, in effect, the political agenda of President Bush who, it's worth recalling, buried Mr. McCain in the Republican presidential primaries last year. Mr. McCain succeeded in forcing the Senate to consider his so-called "campaign-finance reform" legislation as one of its first orders of business. This week, the Senate begins its debate.

Produced in collaboration with Democratic Sen. Russ Feingold, the McCain-Feingold bill would abolish "soft money," the unregulated contributions from individuals, corporations and unions that political parties use to finance issue-advocacy ads and party-building activities, such as voter-registration and get-out-the-vote activities. In doing so, it would drastically limit the ability of both the parties and their members to engage in an unfiltered spirited debate that any thriving democracy requires.

McCain-Feingold also bans unions and corporations from using their money to fund any issue-advocacy ad that mentions a federal candidate's name 60 days before a general election and 30 days before a primary. In other words, while candidates would be free to bash pharmaceutical companies and "Big Labor" in the heat of a campaign, corporations and unions would be prohibited from purchasing issue-advocacy ads at the moment they would be most effective. The bill would also severely restrict the ability of average citizens to pool or "bundle" their resources so that their message can be heard. McCain-Feingold imposes draconian regulatory requirements upon issue-advocacy organizations and citizen groups. It would prohibit them from using union or corporate funds for their ads; and it would require them to divulge the names of individual members who have pooled their resources to pay for the issue ads, a dubious imposition that almost certainly violates the First Amendment's protection of citizens' rights to associate.

It has been a quarter century since the U.S. Supreme Court unambiguously declared in Buckley v. Valeo, "[I]t can hardly be doubted that the constitutional guarantee [of freedom of speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office," i.e., at the very moment McCain-Feingold would restrict it. A decade earlier, as the James Madison Center for Free Speech (www.jamesmadisoncenter.org) notes in an essay analyzing the McCain-Feingold bill, the Court ruled that "there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs, .. . of course includ[ing] discussions of candidates."

In Buckley v. Valeo, the Supreme Court also determined that issue advocacy was constitutionally sacrosanct. Thus, the court concluded, "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure [the] unfettered interchange of ideas for the bringing about of political and social change desired by the people."

The court was equally emphatic about the Constitution's guarantee of freedom of association: "[E]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association." Consequently, the Court concluded, "the First and Fourteenth Amendments guarantee freedom to associate with others for the common advancement of political beliefs and ideas."

As if anticipating the anti-constitutional efforts of Mr. McCain, the court warned in 1976 that "action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny," i.e., the highest level of constitutional protection.

Since then, the federal courts have repeatedly upheld the right of citizens to associate freely for the purpose of combining their resources to express their political beliefs in a timely manner. Repeatedly, the courts have rejected efforts to regulate these issue-advocacy rights protected by the First Amendment. There is no reason to believe that the Supreme Court will treat the free-speech-quashing instruments of McCain-Feingold any differently.


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