In 2002 the McCain-Feingold election regulations legislation, or Bipartisan Campaign Reform Act (BCRA), became law. The law made it illegal for a corporation to use its general treasury funds to pay for “electioneering communication,” within 30 days of a federal primary election or 60 days of a federal general election.
Despite obvious concerns about having the government restrict political speech at precisely the time when it is most vital to a democratic system, the Supreme Court upheld the law in 2004.
Ruling Monday in FEC v. Wisconsin Right to Life, the high court at least revised and partially reversed that decision and may have opened the door to revisiting more comprehensively the issue of regulating political speech during campaigns. That would be welcome.
This decision restores some First Amendment rights to advocacy groups, but the very premise behind the McCain-Feingold law is profoundly at odds with the First Amendment and with the healthy discussion that should underpin any nominally democratic polity.
Here’s how this case came about. In 2004, Wisconsin Right to Life broadcast ads noting that a group of senators was filibustering to delay the confirmation of federal judicial nominees and urging voters to contact Wisconsin Sens. Russ Feingold and Herb Kohl to oppose the filibuster. However, Sen. Feingold was running for re-election, so an ad mentioning his name would be illegal under the BCRA. The right-to-life group failed in its effort to get a court to rule that it could continue to run the ads after Aug. 15, 2004. It stopped the ads but continued the court case.
Eventually a district court ruled the ads were not “express advocacy” ads telling people how to vote but “genuine issue ads” that were therefore permissible. The high court, in effect, upheld that view Monday, ruling that the BCRA was not unconstitutional on its face, but was unconstitutional “as applied” to these particular ads.
Insofar as this ruling loosens restrictions on political speech it is welcome, but it does not go far enough.
Limiting political speech during an election campaign — precisely at the time when unfettered speech is most important to a healthy democratic process — is completely at odds with the First Amendment.
The First Amendment has been stretched to protect sexual and other kinds of speech that some people find offensive. But its most important purpose is to protect freedom of political speech, to assure that any and all political opinions can be aired without being censored by the government.
The dirty little secret behind McCain-Feingold and other campaign finance “reform” ideas is they make it more difficult to defeat incumbent officeholders. As Roger Pilon, vice president for constitutional studies at the libertarian Cato Institute, said, “Opponents must raise extraordinary sums or be independently wealthy to unseat an incumbent” under the best of conditions. “Campaign finance reform makes it more difficult for them to do so and is effectively an incumbent-protection mechanism.”
The high court has slightly weakened this incumbent protection racket. The replacement of Justice Sandra Day O’Connor by Justice Samuel Alito makes it conceivable that with a case with the right set of circumstances the court could invalidate the entire McCain-Feingold law. That would be a red-letter day.