Something almost without precedent in America will happen Thursday. That’s the day when McCain-Feingold — aka the Bipartisan Campaign Reform Act of 2002 — will officially silence broadcast advertising that contains criticism of members of Congress seeking re-election in November. Before 2006, American election campaigns traditionally began inearnest after Labor Day. Unless McCain-Feingold is repealed, Labor Day will henceforth mark the point in the campaign when congressional incumbents can sit back and cruise, free of those pesky negative TV and radio spots. It is the most effective incumbent protection act possible, short of abolishing the elections themselves.
How can this possibly be, you ask? McCain-Feingold — named after the law’s main advocates, Sen. John McCain, R-Ariz., and Russ Feingold, D-Wis. — bans all broadcast political advocacy advertising that mentions candidates by name, beginning 60 days before the election. President Bush signed and the U.S. Supreme Court shockingly upheld McCain-Feingold three years ago. Earlier this week, the Federal Election Commission, decided against allowing an exemption to the ban that would have allowed some highly restricted advocacy ads by groups like the U.S. Chamber of Commerce and the AFL-CIO.
Interestingly, three Democratic members of the FEC voted against the proposed exemption, while three Republicans voted for it. Motions require a majority to pass the panel. Before any GOPers start crowing or otherwise trying to make political hay out of this vote, however, they should be reminded that it was a Republican president who signed McCain-Feingold, and the Arizona senator, the measure’s best-known advocate, may well be the party’s next presidential nominee. In other words, both parties and indeed much of the Washington political establishment are complicit in the assault on freedom of political speech for the rest of us.
None of this would surprise Alexander Hamilton, who argued in “The Federalist Papers” that written guarantees of things like freedom of the press would be purposely misconstrued by ambitious politicians and used as a pretext to do that which the Constitution banned: “I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” That is just about exactly what has happened now with the First Amendment and freedom of political speech, thanks to McCain-Feingold.
By election day, it should be clear to all reasonable persons that McCain-Feingold was a serious mistake and, like Prohibition, ought to be repealed. But proponents of campaign finance reform have always been right about one thing — there is an incredible amount of money in politics and voters should know who it is coming from and to whom it is going. Thus, McCain-Feingold should not simply be repealed; it ought to be replaced with a new law that uses transparency in campaign finance rather than censorship in political expression.
The sunlight of transparency is the best disinfectant in government and politics, far better than imposing censorship on those who have something to say to their fellow citizens about members of Congress and their records.
