The Washington Post's May 26th editorial, Campaign Finance Flip, took presidential candidate Mitt Romney to task for calling for the repeal of McCain-Feingold, which Romney justified in a recent Townhall.com piece, The Fundamental Flaws in the McCain-Feingold Law. The editorial claims a "wrongheaded turnabout," denies that McCain-Feingold is a product of "Washington's back-scratching political class" that "imposes unprecedented restrictions on the political activities of everyday Americans" and disputes that it forces political spending into "secret corners," giving more power to "hidden special interests." The Washington Post is wrong on every count.
Romney attacks McCain-Feingold because the "electioneering communication" prohibition imposes a "free speech blackout period," where corporations, including non-profit advocacy groups, and labor unions would commit a federal crime if they mentioned the name of a federal candidate in a broadcast ad within 30 days of a primary and 60 of a general election. He says that "the American people should be free to advocate for their candidates and their positions without burdensome limitations" and that this blackout period "is contrary to the spirit of a free and open issues debate."
There can be no doubt that this "free speech blackout period" is an "unprecedented restriction on the political activities of everyday Americans." It is "unprecedented;" even the now discredited Sedition Act of 1798 required that the prohibited speech be "false, scandalous and malicious" or bring governmental officials "into contempt or disrepute."
And Senator McCain and the campaign finance lobby argue that even grass roots lobbying about upcoming votes in Congress should be banned during the blackout periods. Senator McCain intervened in two cases brought by Wisconsin Right to Life and the Christian Civic League of Maine to stop them from lobbying their Senators about the filibuster of Bush's judicial nominees, the Child Custody Protection Act and the federal marriage protection amendment.
Furthermore, the law targets groups, corporations and labor unions, exempting wealthy individuals, spending their own money, and the news media. "Everyday Americans" must pool their resources into advocacy groups to effectively participate in our democracy, and they are the ones prohibited.
James Bopp, Jr. is a leading campaign finance litigator who serves as General Counsel for the James Madison Center for Free Speech in Terre Haute, Indiana. He also serves as Special Advisor for Life Issues for the Romney for President campaign.
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