Eminent Domain

There has been a slight tousle in the pages of The Examiner recently. An editorial blasted the McCain-Feingold campaign finance reform law. Feingold wrote this response. That sparked this response to the response, written by Professor Bradley A. Smith.

While the original editorial went too far with some broad claims about the law, Feingold did not help his cause with his response. Prof. Smith takes him to task for it...

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.

Feingold claimed that PACs could be used as speech conduits for the restricted interest groups. Smith says that's not good enough...

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.

There are specific contribution limits on PACs. The limits restrict the amount of money that the PAC can raise, especially if the PAC does not have many supporters (even if they are rich). In effect, PAC contributors can only buy so much speech even if they want to buy more. Prof. Smith has more on the PAC issue...

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.

I bolded that last line because it is such an important point. I don't want the government restricting political speech like this. It's not their role to tinker with the First Amendment rights of citizens who join together in groups in order to speak. Elected officials hate these "sham issue ads" or "attack ads" for one reason; they work. Voters respond to negative ads. The incumbents have used the political system to reduce the amount of critical ads. They want to get re-elected.

Prof. Smith is not done yet. Now, he goes after Feingold for his opposition to the proposed grassroots lobbying exception...

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.

No one should be shocked by this. Now that McCain and Feingold have their restrictions in place, they are going to fight exceptions, even reasonable ones.

Prof. Smith also looks at the timing issue...

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 cuts permanent, 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.

Congress is still hard at work, trying to get legislation passed before the election. These bills deal with important issues. It would be nice if everyone could comment on them in a public forum without dollar restrictions.

Prof. Smith closes with a series of questions and an answer...

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.

Campaign finance reform laws are made to sound like they fight a great evil: government corruption. Unfortunately, they don't get the job done... at all.