In Buckley vs. Valeo, decided more than a quarter-century ago, the Supreme Court struck down mandatory limits on campaign spending, rightly arguing that such expenditures represented a form of free speech protected by the First Amendment. Ever since, the self-styled campaign reformers have been working overtime to limit political debate when it is most important (immediately preceding an election) and where it is most effective (on television and radio). Many of these reformers will never be satisfied until all campaigns are publicly funded and oppressively regulated — by them. Their most recent product was the McCain-Feingold bill, the latest version of which Congress passed last year and President Bush ill-advisedly failed to veto. Today, the Supreme Court will hear arguments about the bill’s constitutionality.
The two most significant features of McCain-Feingold involve its prohibition of the raising and spending of soft money by national political party committees and its efforts to drastically reduce “electioneering communications.”
In addition to limiting free speech, both legislative provisions will have the effect of significantly weakening the nation’s political party system. This would perversely occur at the very moment that a national consensus calling for stronger parties has emerged following years of party-weakening trends. Moreover, as recent history has demonstrated, political parties, which have used much of their soft money to fund issue ads, are far more likely than political action committees to support viable challengers. Thus, a collateral effect accruing to those reformers who voted for the bill will be its incontrovertible incumbent-protection effects — at a time when re-election rates are already at historic highs. How appropriate, then, that McCain-Feingold went into effect the day after 98 percent of House incumbents seeking re-election won their races.
In a full frontal assault on the First Amendment, McCain-Feingold would severely restrict the ability of corporations, labor unions and nonprofit organizations — in other words, legitimate interest groups — to fund issue ads mentioning a federal candidate within 60 days of a general election and within 30 days of a primary. These periods happen to be when free speech rights matter the most. How can democratic forces function when legitimate interest groups cannot express themselves on issues affecting all Americans? At the dawn of the 18th century, politicians and “factions” established newspapers to communicate their ideas. At the beginning of the 21st century, television and radio are the media through which parties and interest groups express their ideas to the nation’s nearly 300 million people across its 3.6 million square miles.
Too much political debate? Not a chance. In truth, there is much too little. If the Supreme Court unwisely upholds McCain-Feingold’s assault on the First Amendment, there will sadly be much less.