[The] Supreme Court . . . upholding the McCain-Feingold campaign finance law . . . is cause for celebration. —New York Times lead editorial, “A Campaign Finance Triumph,” December 11
[The] decision will do far more to restrict political speech than to curtail the influence of money on politics. —Anthony Romero, executive director, American Civil Liberties Union, The New York Sun, December 11
[The law] cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. —Justice Antonin Scalia, dissenting, McConnell v. Federal Election Commission, U.S. Supreme Court, December 10
After the Supreme Court ruled that the McCain-Feingold Bipartisan Campaign Reform Act, which purportedly removes corruption from political campaigning, is constitutional, one of the victorious lawyers defending the law before the Supreme Court, Seth Waxman, former solicitor general, told National Public Radio: “What the Supreme Court said today resoundingly is Congress is not handcuffed by the First Amendment from doing what it takes to restore the confidence of citizens in the operation of the republic.”
Actually, what the High Court has done is to handcuff the First Amendment—particularly as it applies to the free-speech rights of such organizations as the American Civil Liberties Union, the National Right to Life Committee, the AFL-CIO, the National Rifle Association, and other advocacy groups, now forbidden by an unprecedented gag rule to broadcast on television or radio any issue ads that refer to specific candidates for federal office within 30 days before a primary, or 60 days before a general election.
As Justice Anthony Kennedy, dissenting, wrote, by way of example, “[The Bipartisan Campaign Reform Act] makes it a felony for an environmental group to broadcast an ad, within sixty days of an election, exhorting the public to protest a Congressman’s impending vote to permit logging in national forests.”
However, just as it was before this act was declared constitutional by one of the most mediocre Supreme Courts in our history, super-rich individuals, on their own, can spend any amount, at any time, from their personal funds, to advertise opposition to, or support of, any candidate in a national election—provided they do not contribute those funds directly to a political party or candidate.
Accordingly, George Soros—who is increasingly politically active and is determined to send George W. Bush back to Texas next year—now has more First Amendment rights, thanks to this McCain-Feingold “reform” law, than those of us who contribute to the ACLU or the National Rifle Association during those weeks and months when our voices count. These extra First Amendment rights can also be exercised by Bill Gates or another abundantly achieving capitalist.
Soros, moreover, is additionally enjoying his First Amendment right to take advantage of the recently organized 527 groups, named after the rules in Section 527 of the Internal Revenue Code. These groups are less regulated than the advocacy groups for the nonrich, which are instructed by the new “reform” law as to when they can and cannot advertise on radio and TV.
As Glen Justice reported in the December 12 New York Times (“A New Battleground in Political Fundraising”), one of the new 527 groups, America Coming Together—aimed at defeating Bush in the next national election—has received a $10 million pledge from George Soros. These groups can collect unlimited contributions (“soft money”). They too, if they are corporations, are subject to the 30-60-day rule of not mentioning candidates; but they can, as Glen Justice writes, markedly influence elections by engaging in “large-scale efforts to register and mobilize voters.” And again, there are no limits to multimillionaires running their own ads anytime.
Those of us who are not millionaires or billionaires—readers of the Voice, for example—know that to be heard, we have to amplify our views through belonging to one or more of those organizations that are able to mobilize collective support for social and political positions. Most of these groups on the left or the right oppose government policies, for different reasons.
Last spring, I was at a conference of journalists in Boston discussing the Patriot Act, McCain-Feingold, and other issues. A reporter asked Democratic congressman Martin Meehan of Massachusetts, an especially aggressive supporter of the McCain-Feingold bill, why the time frame for forbidding issue ads was set at 30 and 60 days.
Logically, honestly, Meehan answered, “That’s when people are most interested in the elections!” Where, then, does the Supreme Court find in the Constitution the authority to put a gag rule on the ACLU, the National Right to Life Committee, the AFL-CIO, et al., precisely at the points before the election when their views—and the views of those of us who contribute to these organizations—are most likely to influence the results?
The Supreme Court, in NAACP v. Button (1963), declared,”Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association.” That shouldn’t mean special clout for the less-regulated George Soros, Bill Gates, and others of the plutocracy.
Yet The New York Times, The Washington Post (“one of the [Supreme Court’s] most important decisions in a generation”), and many liberals cheered the court’s decision “reforming” campaign finances.
There is a way, however, for the ACLU et al. to avoid the 30-60-day gag rule. If they financed their issue ads through PACs (political action committees), they’d meet the Supreme Court’s regulation. But that would require naming their contributors. The government would then know the names, addresses—and the views—of those contributors of more than $1,000 as a matter of public record. If a boss were angered to learn, through the public records, of an employee’s views, would there be retaliation?
In his dissent, Justice Clarence Thomas, underrated as a First Amendment advocate, emphasized the American tradition—starting before the Revolution—of protecting anonymous speech, including rulings by the Supreme Court.
In McIntyre v. Ohio Elections Commission (1995), the court, Clarence Thomas concurring, ruled that “the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.”
To be continued, with the AFL-CIO’s startling revelation of the extent of the gag rule on the independent public interest groups in the next presidential election. The media blew this one!
This article from the Village Voice Archive was posted on January 13, 2004