During the last 10 general elections for Congress held before 2002, voters returned to office an astounding 95.8 percent of House incumbents seeking re-election (3,746 out of 3,910) and 86.3 percent of incumbent senators seeking another term (215 out of 249). Evidently, these re-election rates weren’t high enough for a majority of members of the 107th Congress. In 2002, the House (240-189) and the Senate (60-40) passed the Bipartisan Campaign Reform Act, which is better known by the names of its Senate sponsors: McCain-Feingold. It should have been called the Incumbent Protection Act of 2002 because it tossed a dagger through the heart of the First Amendment’s free-speech provision.
Regrettably, by signing the unconstitutional McCain-Feingold campaign “reform” law, President Bush broke an unambiguous campaign promise to veto it. By forbidding labor unions, corporations and interest groups (e.g., the American Civil Liberties Union or the National Rifle Association) from using money in their general treasuries to finance television and radio issue ads mentioning the name of a federal candidate within 30 days of a primary and within 60 days of a general election, McCain-Feingold dramatically infringed upon the free-speech rights of Americans at the most crucial time those rights could be exercised.
In a 5-4 decision, the Supreme Court recently took a major step toward emasculating this odious “electioneering communications” provision of McCain-Feingold. However, by not directly striking down the provision as unconstitutional, the court did not go as far as we would have preferred. Nonetheless, the practical effect of its decision will be to give Americans far more opportunity to exercise their free-speech rights during the 2008 elections than they were during the 2004 and 2006 election campaigns.
Specifically, the court agreed that Wisconsin Right to Life, a nonprofit corporation, had the right to use funds in its treasury to broadcast TV and radio ads within 30 days of the Wisconsin primary that urged citizens to contact Wisconsin Democratic Sens. Russ Feingold, who was seeking re-election, and Herb Kohl, who was not, and tell them to stop participating in Democratic filibusters against several of President Bush’s judicial nominees. Amazingly, had McCain-Feingold been in effect in 2002, it would have been illegal for Americans to form an interest group — say, a nonprofit issue-advocacy corporation calling itself Americans for Peace in the Middle East (APME) — and use funds from APME’s treasury to finance TV and radio ads beseeching senators and House members to vote against the October 2002 resolution authorizing war against Iraq.
“Discussion of issues cannot be suppressed,” Chief Justice John Roberts Jr. wrote for the majority, “simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” Hear ye, hear ye.