The possible outcomes are disturbing. For example, Oprah Winfrey operates a website dedicated to urging people to contact Congress to demand intervention in Darfur. If her Web master took in over $100,000 in revenue from Ms. Winfrey and similar clients in a single quarter, he might be forced to make disclosures under the law.
"It's huge," Jay Sekulow of the conservative American Center for Law and Justice, told The Hill newspaper. "It's the most significant restriction on grassroots activity in recent history. I'd put it up there with the 2002 Bipartisan Campaign Reform Act" — the formal name for McCain-Feingold.
McCain-Feingold itself is riddled with loopholes, producing a slew of unintended consequences. Its provisions allowing candidates who compete against wealthy opponents who spend their own money to accept larger-than-normal legal contributions in order to compete inexplicably don't apply to the race for president. That means Mitt Romney and John Edwards, both of whom are independently wealthy, have a clear advantage should they run low on cash and need to inject funds into their campaigns quickly.
"Judged by the most visible results on promises like getting big money out of politics or cleaning up politics, campaign finance reform has been, to put it mildly, a disappointment," admits Mark Schmitt, a supporter of such reforms who has written a thoughtful essay in the journal Democracy. He urges reformers to now focus on expanding the "range of choices and voices in the system" and to take seriously the worries of those who fear that McCain-Feingold's restrictions on "election communication" have the potential to squelch important political speech. The Supreme Court is set to rule next month on a case addressing precisely that issue, and Justice Samuel Alito may be more inclined to view McCain-Feingold skeptically than was Sandra Day O'Connor, who was part of a 5-4 majority upholding the law.
Given the checkered history of campaign finance reform, its frequent use by one side of a political debate to hobble opponents, and the prospect that courts may yet find portions of McCain-Feingold unconstitutional, it would be a travesty for a Congress desperate for a quick-fix legislative accomplishment to circumscribe the First Amendment with little debate and even less understanding of what the consequences will be.
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