The U.S. Supreme Court has agreed to hear Wisconsin Right to Life's challenge to application of McCain-Feingold to genuine issue ads run "too close" to a federal election or primary. WRTL sought to run ads urging Senators Kohl and Feingold to vote on the President's judicial nominees. McCain-Feingold prevents the use of the organization's general treasury funds for ads mentioning a candidate for federal office within thirty days of a primary or sixty days of a general election (if it is broadcast to an audience with more than a specified number of folks where the candidate is running).
Writing at the Election Law Blog, Prof. Rick Hasen thinks that this may begin to roll back the McCain-Feingold regime. He thinks this is a bad thing. I don't.
Campaign finance regulation that goes beyond disclosure to the placing limits on the extent to which persons and groups can communicate about an election or about the issues at a time when both candidates and the public are paying attention is a rather significant restriction on freedom of speech. I can't get past that.
I understand the argument that "spending money" is not speech, but this case is not about contributions to a candidate. It is about the ability of an advocacy group to communicate with the public at an appropriate time. If all the first amendment protects is our ability to stand on a tree stump and speak to whoever is within earshot, it doesn't protect much.
The tragedy of McCain-Feingold's restriction on speech is compounded by the fact that it has done exactly nothing to limit the supposedly corrupting influence of money that is spent on politics. The need to raise money is just as overwhelming and people with a lot of money to spend are just as important.
We've now had about thirty years experience with campaign finance reform and, while I think disclosure is important, limits on contributions and expenditures have done nothing to make our politics less corrupt or our candidates less driven by the need for cash. To the contrary, "reform" has made it harder (and much less attractive) for candidates without personal resources or who are not incumbents to run. Trying to raise enough money to run in the increments permitted by campaign finance laws is always extremely difficult and often offputting. There are lots of good people who won't run for public office because they do not want to spend a year of their lives begging for money.
Some folks, take Fighting Ed Garvey as an example, want public financing. This has a superficial appeal, but I have never heard anyone explain how it could be implemented without doing serious damage to the political process. Would you make it illegal for a candidate to spend more? Would you prohibit all independent expenditures? If you don't, the purpose of public financing is likely to be subverted. If you do (and if the courts permit it), you have undermined the first amendment in some very frightening ways.
Frightening, in particular, because we won't be able to give public money to everyone. The candidate who once came out of nowhere will now stay there.
Maybe there is a way to do it, but I have yet to hear it.
NOTE: An earlier version of this post did not make clear that the prohibition was on ads funded through general treasury funds of a corporation and union.