Sen. Russ Feingold, D-Wis., takes issue with The Examiner’s editorial criticism of the McCain-Feingold bill and its “ban” on certain broadcast ads. The indignant senator responds that the law “doesn’t ban or censor any speech.”
Feingold’s position is disingenuous. For just a few sentences after telling us the law “doesn’t ban or censor any speech,” he tells us that McCain-Feingold was necessary to prevent some voices from being “drowned out” by others. As McCain-Feingold does nothing to affirmatively create or encourage speech — it offers no subsidies or platform for political speech — the only way it can prevent anyone’s voice from being “drowned out” is through the suppression of other speech — and that is indeed what McCain-Feingold does, as the senator must know.
It is true, as the senator notes, that an organization can still use a political action committee to run ads critical of members of Congress. Of course, most citizens groups — including many large ones, such as the American Civil Liberties Union and the American Bar Association — do not have PACs.
Even when organizations have PACs, they are a poor substitute for direct political speech. PACs are subject to a great deal of regulation, including limitations on who may be solicited for contributions. As a result, most PACs lack the funds to run serious broadcast campaigns.
Obviously, Sen. Feingold knows this — if running ads through a PAC were no different than paying for them directly, then why put the restriction in place at all? But in fact, the purpose of the law, as the senator admits, was to “prevent corporations, unions and organizations” from running ads that they had formerly run, by choking off the source of funding — “soft money” — they had used to pay for those ads.
In this respect, we can give some credit to Sen. Feingold: The limitation on running ads within 60 days of the election is not really a “blackout,” but a “brownout.” One can speak, but not at full power. And it will be the government that decides who is being “drowned out” and who is doing the “drowning.” Of course a major purpose of the First Amendment was to prevent the government from deciding who was speaking too much, and whose voice needed to be muzzled.
Sen. Feingold’s opposition to a proposal to have the Federal Election Commission create a grassroots lobbying exemption — an exemption specifically authorized under the McCain-Feingold law — is indicative of the “bait and switch” tactics used by the so-called “reform” community.
The FEC proposal was ridiculously narrow — it would still have prohibited any broadcast ad that “promotes, supports, attacks, or opposes” any candidate for office; that mentioned any political party; that mentioned any personal characteristic of a candidate; or that characterized an incumbent’s position in other than the incumbent’s own words.
Yet even this was too much unregulated speech for Sen. Feingold — not that he wants to “ban or censor any speech,” of course. When McCain-Feingold was passed, we were assured by its sponsors that “genuine” issue ads would still be allowed. Now that the law is in effect, Sen. Feingold insists that a limited exemption to permit those “genuine” issue ads would “undermine” the law.
Meanwhile, though citizens’ groups are limited in their ability to even mention an officeholder in an ad from now through election day, let alone criticize the incumbent, Congress continues to consider important issues, such as budget bills, a proposal to authorize military tribunals to try suspected terrorists, efforts to reduce taxes and make other tax cutspermanent, lobbying and earmark reform, and much more.
If Sen. Feingold thinks it’s inappropriate to allow an exemption for citizens to speak out on these issues, perhaps he will at least offer a motion to adjourn until such time — after the election — as citizens can again participate fully in the debate.
Sen. Feingold can say what he wants, but he cannot deny that the explicit purpose of McCain-Feingold was to reduce the political speech of American citizens. After four years, what have we gained for surrendering this freedom? Is Congress less corrupt? Less controlled by special interests? Is public policy better? Are campaigns more focused on issues? What tangible benefit has been gained? I submit that the answer is none.
Bradley Smith is former chairman of the Federal Election Commission, a professor of law at Capital University in Columbus, Ohio, and chairman of the Center for Competitive Politics, www.campaignfreedom.org.
