In a speech last month, Sen. John McCain said Bradley Smith is unfit to head the Federal Election Commission because his principles prevent him from properly enforcing the nation's campaign laws. At the same time, the Arizona Republican suggested that Smith has no principles.
McCain, who co-authored the Bipartisan Campaign Reform Act of 2002, threw Smith in with the "stooges of special interests" who are determined to undo the senator's handiwork. And even while conceding that Smith has rebuked fellow Republicans for trying to use campaign finance regulations to hamper the Democrats, McCain called his positions "politicized."
McCain is so upset he can't think straight. In particular, he's upset about groups like America Coming Together and Progress for America, ostensibly independent (but by no means neutral) political organizations that are tax-exempt under section 527 of the Internal Revenue Code.
McCain says it's obvious such groups, known as 527s, should be treated as "political committees," which would prevent them from accepting the unregulated contributions his law prohibits the national parties from taking. On Thursday, the FEC decided to delay action on the issue, causing McCain's head to explode (I'm assuming).
McCain's outrage about "these groups openly flouting the law" is the latest episode of a futile crusade that restricts speech to prevent "the appearance of corruption." The pattern by now is familiar: New rules lead to new evasions, which in turn lead to new rules.
There's one basic reason Congress and the FEC have been unable to get it right after all these years. It's called the First Amendment.
Not that the Supreme Court hasn't tried to help. In 1976, the Court approved the limits on contributions to political committees imposed by the Federal Election Campaign Act of 1974. While spending money to communicate a message is intimately tied to freedom of speech, the justices reasoned, giving or getting the money is another matter.
Trying to apply this implausible distinction, the Court immediately ran into trouble. To avoid reaching "groups engaged purely in issue discussion," it restricted the definition of "political committee" to "organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate."
The Court also said political messages should trigger the law's regulations only when they "expressly advocate the election or defeat of a clearly identified candidate." The law itself allowed the use of unregulated money for voter registration and get-out-the-vote efforts.
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