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Supreme court mccain feingold ruling { December 11 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A54524-2003Dec10.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A54524-2003Dec10.html
McCain-Feingold Ruling Angers Activists on Both Left and Right
By David Von Drehle
Washington Post Staff Writer
Thursday, December 11, 2003; Page A01
It's not every day the National Rifle Association and the American Civil Liberties Union are outraged by the same Supreme Court decision.
The two organizations are often used to represent opposite poles of American politics, the gun-toting right and the liberal left. But both groups hated yesterday's unexpectedly broad ruling by the court to uphold the major provisions of the McCain-Feingold campaign finance law.
Reformers have been trying to squeeze the influence of money out of politics for at least 100 years, but yesterday's ruling was either one of the boldest steps yet or a terrible overreach, depending on which side was analyzing the case. Surprise at the scope of the ruling was just about universal, however. Even many proponents of the campaign finance law had expected the court to use the First Amendment to strike down new limits on political advertising on television.
But the prevailing justices -- with Justice Sandra Day O'Connor in the decisive role, as she is so often -- cast a deeply disgusted eye on the entire political process, finding "corruption, and in particular the appearance of corruption" almost everywhere they looked. Even efforts by political parties to register voters, identify supporters and urge them to the polls -- activities once extolled in civics classes -- were seen as opportunities for corruption if large donors were allowed to pay for such projects as a way of currying favor with elected officials.
The problem with critics of the law, the majority declared, is that they "conceive of political corruption too narrowly."
This attitude took the 5 to 4 majority well beyond earlier limitations on political advertising, in the judgment of several First Amendment experts. And so a broad range of advocacy organizations denounced the decision as a historic attack on the right to free speech. Under the ruling, groups wishing to use television ads to criticize -- or even mention -- federal candidates in the decisive months of an election year must comply with an array of regulations before they can say their piece.
"The notion that the government can tell an organization like the ACLU when and how it should address important civil liberties issues is a form of censorship masquerading as campaign finance reform," ACLU Executive Director Anthony D. Romero said in a statement reacting to the ruling.
Wayne LaPierre, head of the NRA, called the ruling "the most significant change in the First Amendment since the Alien and Sedition Acts of 1798, which tried to make it a crime to criticize a member of Congress."
"This whole thing from the start has been an inside deal among politicians to stop criticism, whether it comes from us or from the Sierra Club," LaPierre said.
"Well, we're going to be heard," he added, "and they're going to be surprised how loud we're going to be heard."
The court explained itself by saying that Congress is the best institution for sorting out election rules and for balancing the importance of free speech against the need for reform. But that theory was also hotly debated yesterday.
To critics of the ruling, including dissenting Justice Antonin Scalia, giving congressional incumbents a virtually free hand to set the rules of elections is like letting the reigning Scrabble champion rewrite the dictionary.
The legislation "prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice," Scalia wrote, namely, "national political parties and corporations, both of the commercial and the not-for-profit sort." In his typically tart way, Scalia noted that the Supreme Court has recently protected the free speech rights of tobacco advertisers and Internet pornographers -- but has now limited the rights of corporations and labor unions to criticize elected officials in television ads.
"I could not be more shocked," said James Bopp, general counsel at the James Madison Center for Free Speech, who denounced the campaign finance law as "an orgy of incumbent protection." Like many critics of the ruling, he noted the irony that a law designed to limit the influence of money in politics leaves one class of citizens almost entirely unregulated -- the super-rich. People willing and able to spend their own fortunes on political ads can say what they want when they want.
Critics also noted that the major television outlets are owned not by disinterested charities but by major corporations: Disney owns ABC, General Electric owns NBC, Viacom owns CBS, Time Warner owns CNN. And so on.
"These conglomerates spend millions in political contributions to influence legislation, but whatever they decide is news will be all over the airwaves until Election Day," LaPierre said. "Somehow they are pure, while AARP or the NRA is not."
This analysis seemed overheated to those who saw yesterday's ruling as a big step forward for honest and open politics -- and a lot of people felt that way.
"The law does nothing to prohibit any ads," said Colby College professor Anthony Corrado, an authority on campaign finance laws. "What the law says is you can air ads solely devoted to discussion of an issue -- without mentioning a federal candidate. But if you are broadcasting an ad within 60 days of the election" -- the window is 30 days in the case of primaries -- "and the ad features or names a federal candidate, then it has to be paid for with money subject to federal election laws. You can't use corporate or labor union money."
In trying to clean up the problem of "sham issue ads," the court fell back on a solution that might intrigue people who have spent a few decades watching the endless effort to clean up campaign finance. Political action committees -- PACs, those darlings of reformers in the 1970s turned demons of the 1980s -- are once again in good odor, according to the court.
Corporations and advocacy groups -- from big drug companies to environmentalists -- must, under the ruling, use PACs to raise money to air their regulated advertisements. A defiant LaPierre said yesterday that the NRA will immediately ask its 4 million members and 28 million affiliated members to donate $20 each, a potentially enormous ante to push back onto the table.
ACLU leaders, on the other hand, resisted the idea that they should have to form a political committee to promote issues that they see as nonpartisan.
The whole thing was "incomprehensible" to storied First Amendment lawyer Floyd Abrams, who felt the nearly 300-page ruling missed the fundamental importance of political speech. "It almost reads like a tax case rather than a First Amendment case," he said. "In style, tone and nature, it reads like an opinion about regulation by government of some sort of improper activity."
© 2003 The Washington Post Company
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