- The Washington Times - Sunday, November 9, 2003

During last year’s debate on the Bipartisan Campaign Reform Act, (or “BCRA,” perhaps better known as “McCain-Feingold”) we were told repeatedly the law was not intended to stifle freewheeling political debate or turn the Federal Election Commission (“FEC”) into the national speech police.

Imagine, then, the chagrin I felt at finding myself seated in the FEC hearing room recently, reviewing the text and storyboards of a proposed television advertisement by a candidate for mayor in Evansville, Ind., to determine if the ad was legal.

In theory, the McCain-Feingold bill merely attempts to reduce the influence of special interests by curtailing the role of money in campaigns. In practice, the bill reaches far deeper than its supporters admit, or perhaps even realized.

Consider the above-referenced commission meeting. The candidate, Jonathan Weinzapfel, was endorsed by Indiana’s popular junior senator, Evan Bayh. Mr. Weinzapfel sought to benefit by having Mr. Bayh film an ad touting Mr. Weinzapfel’s candidacy. Mr. Bayh would appear on screen before an American flag. Shots of the candidate would be interspersed with shots of Sen. Bayh giving this testimonial:

“Hi. I’m Evan Bayh. Over the past few years, I’ve come to know Jonathan Weinzapfel very well. We’ve worked together, and I’ve seen firsthand how committed he is to making Evansville a better city. From working to cut taxes to passing a law that protects our kids from drugs, Jonathan Weinzapfel knows how to get the job done. He’s got a bipartisan, common-sense way of solving problems. He cares about what really matters to people. And he’s exactly the kind of mayor Evansville needs.”

Sounds innocent enough. However, under McCain-Feingold, no state or local political party, and no candidate for state or local office, can make any “public communication” that “promotes or supports” or “attacks or opposes” any federal candidate or officeholder unless paid for with federally regulated money.

Although Mr. Weinzapfel was seeking local office in Indiana, and the campaign was paying for the ad in accordance with Indiana and Evansville laws, his campaign could not run the ad if it “promotes or supports” or “attacks or opposes” Mr. Bayh.

So there we sat, less than three weeks before the election, five appointed federal bureaucrats, deciding whether or not the proposed Weinzapfel ad ran afoul of the law: did it “promote, support, attack or oppose” Mr. Bayh? Would the citizens of Evansville be able to hear about Sen. Bayh’s endorsement in his own words? Or would running this ad violate the law, subjecting Mr. Weinzapfel, Weinzapfel for Mayor staffers, and even Mr. Bayh to possible jail time under the new criminal penalties included in McCain-Feingold?

Much attention is paid to the provisions of McCain-Feingold that limit the ability of groups such as the Sierra Club, the American Civil Liberties Union, the National Rifle Association and Americans for Tax Reform to run broadcast advertisements that mention a candidate within 60 days of an election.

But as the Weinzapfel experience shows, the 60-day rule is not even the most restrictive part of the law. The limits on ads that “promote,” “support,” “attack,” or “oppose” a candidate apply only to political parties and state candidates, but they apply every day of every year.

Although the commission voted 5-0 that Weinzapfel could run the ad in question, the case was not an open-and-shut matter. The ad provided Mr. Bayh with free face time before a significant portion of the Indiana electorate. With good lighting, an American flag behind him, and the opportunity to talk about “working to cut taxes,” and “protecting our kids from drugs,” the ad certainly left viewers not only with a favorable impression of Mr. Weinzapfel, but also of Mr. Bayh. It would have been very easy to conclude the ad “promotes” or “supports” Mr. Bayh — indeed, I would be hard-pressed to say it did not.

Nonetheless, I voted to approve the ad because of my belief that a straightforward reading of the statute would be blatantly unconstitutional.

Other candidates and officeholders cannot rely on the FEC’s decision in Weinzapfel. In comments to the commission, the Campaign Legal Center, whose lawyers helped to draft the statute, noted that, “it is important for the FEC to ensure that its eventual response [to Weinzapfel] is … limited to the facts at hand. We strongly agree that both the actual content and the context [of the ad] are indispensable to the required determination [of legality] — and render it dependent on the specific facts of a given case.”

Mr. Weinzapfel requested FEC advice on Aug. 7, nearly two months before the FEC ruled. Most campaigns will not have the luxury of seeking an individualized advisory opinion before running ads. Their only option will be not to run the ads, or to risk civil and criminal penalties under the law.

Finally, it is worth noting that, but for an FEC-adopted regulation, the Weinzapfel ad would still have been an illegal “coordinated” communication. Yet the House sponsors of McCain-Feingold, Reps. Marty Meehan, Massachusetts Democrat, and Chris Shays, Connecticut Republican, with the support of Sens. John McCain, Arizona Republican, and Russell Feingold, Wisconsin Democrat, are challenging this very regulation in court as an unreasonably narrow interpretation of the law.

The United States Supreme Court will soon rule on the constitutionality of McCain-Feingold. As they consider the case, I hope the justices keep in mind the image of five unelected federal bureaucrats, sitting around a dais looking at storyboards to decide if the citizens of Evansville can be told whom their senator endorses for mayor.

Bradley Smith is vice chairman of the Federal Election Commission. The views expressed are his own and not those of the commission.


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