Jewish World Review April 5, 2001 / 12 Nissan, 5761
The good news about McCain-Feingold is ...
THE good news about the McCain-Feingold campaign-finance-reform bill, which passed the Senate this week by a vote of 59-41, is that it is at its heart such an insane measure that it will never be the law of the land.
The courts will gut McCain-Feingold from stem to stern, and hurrah for that.
The emotional appeal of McCain-Feingold is its ban of "soft money," the unregulated millions which pour into federal campaigns in an increasingly blatant, and entirely successful, effort to weasel around federal election laws governing direct contributions to candidates. This appeal is understandable.
It was clear that the Clinton-Gore White House - in which access to the president and special consideration on issues of government policy were openly sold for soft money - had to represent a bottom; there had to be some sort of response to such an open display of corruption. McCain-Fein- gold is the response, and the temptation is to gaze upon it with a lover's eyes.
This, though, is not how the Supreme Court will regard the reeking mess that the Senate cleared off its desk this week. The court will - any court would - view McCain-Feingold for what it is: an insupportable, blatantly unconstitutional assault on the rights to speak and associate freely.
The assault comes in the areas of the bill that have received less attention than the media-beloved soft-money ban.
Media descriptions of the bill tend to describe its speech-restricting provisions in a shorthand: Under an amendment offered by Sen. Paul Wellstone, the bill would prohibit nonprofit groups, for-profit corporations, labor unions and trade associations from sponsoring broadcast advertisements that name and "promote candidates" within 30 days of a primary election or 60 days of a general election.
In fact, the bill is much more sweeping in its restrictions. If the courts find the above measure to be unconstitutional (which they will), McCain-Feingold would move to protect its speech restrictions under a contingency amendment offered by Sen. Arlen Specter. The Specter amendment is actually much worse than the Wellstone amendment.
It forbids the covered groups from sponsoring - at any time - any broadcast advertisement that "promotes," "supports," "attacks" or "opposes" any "candidate," and that is "suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate."
This appears to prohibit, say, a labor union, from paying for an ad that pointed out that Congressman X had voted against the increase in the minimum wage. Indeed, it appears to prohibit saying almost anything.
There is more in McCain-Feingold that the courts will find pernicious. In the pungent analysis of James Bopp Jr., general counsel for the James Madison Center for Free Speech, "This bill shakes a fist at the First Amendment; if passed it is destined for a court-ordered funeral." Most of the senators who voted for it probably know this is true; that's one reason so many voted for it.
What's troubling is not that this attack on speech will stand; it is that it has been so widely and unthinkingly applauded as a good thing.
This is bizarre. Do good-government liberals really want a country where labor unions and environmental groups and the NAACP are stifled?
Do they really want a country where the laws protect the politicians from those who would tell embarrassing truths about
Michael Kelly is the editor of National Journal. Send your comments to him by clicking here.
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