“Plain-Speaking” About McCain-Feingold-Thompson

James Bopp, Jr.
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Posted: Sep 21, 2007 12:21 PM
“Plain-Speaking” About McCain-Feingold-Thompson

Fred Thompson, running for President as the "plain-speaking consistent conservative," was asked about campaign finance reform by Laura Ingraham on her radio show the day after his Presidential announcement. She said, "One of the things that also happened in the Senate was McCain-Feingold and it was initially called McCain-Feingold-Thompson. Of course that's campaign finance reform. As you know, Senator Thompson, the Supreme Court has struck down part of that as unconstitutional on First Amendment grounds, you know, issue ads that you can't run before a general election or a primary contest, which for conservatives like me are just anathema to the First Amendment. You now say that you see unintended consequences resulting from campaign finance reform. Would you today tell us that you made a mistake in supporting campaign finance reform?"

Senator Thompson responded that he "didn't think it is a good idea" for corporations and labor union to give "large sums of money to individual politicians." But this is not what Laura had asked, so she tried again: "What about the issue ads?"

Seeing the need to shift his approach, Thompson said: "Well, that's a different story. I'll get to that in a minute" and he then explained, in a long rambling paragraph, that he opposed "soft money," which "poured" in and is "called bribery." "We wanted to do away with that." Then he said: "Now, they added on something that was a mistake and that is the issue ads that you were talking about and I voted for all of it. So I support the first part but I don't support that."

What is one to make of this? Apparently, in a flash of revisionist history, Senator Thompson thought it was a "mistake" to restrict issue ads that others added to McCain-Feingold over his opposition. But he reluctantly supported the whole bill anyway.

While it is certainly true that Senator Thompson supported McCain-Feingold in total, his support was not reluctant. He did not oppose adding regulation of issue ads, and he hardly viewed such hyper-regulations at the time as a "mistake." Indeed, McCain-Feingold was originally called McCain-Feingold-Thompson for a reason. Senator Thompson was widely known as "McCain's strongest Republican supporter" during his years in the Senate and Mark Salter, Senator McCain's chief of staff, declared in 2001 that "if McCain-Feingold passes, it will not have happened if it weren't for Fred Thompson." McCain-Feingold did pass in 2002 and even survived a legal challenge in 2003, but the issue ads restrictions were largely struck down early this summer.

This is the real story of Fred Thompson's adamant support for McCain-Feingold-Thompson and its regulation of issue ads by advocacy groups.

The Thompson Investigation

Reelected in 1996, Senator Thompson assumed Chairmanship of the Senate Governmental Affairs Committee in early 1997. He seemed to be the perfect person to lead the investigation of the 1996 Clinton campaign scandals. Thompson had been a star of the 1974 Senate committee investigation of the Watergate break in, which would lead to the resignation of President Nixon, and he was viewed as a tough prosecutor and a shrewd lawyer. The 1996 Clinton campaign and the Democratic National Committee were awash in illegal foreign contributions and the Republicans were itching to do a full investigation, a not unjustified payback for Watergate.

Thompson's committee was charged by the Senate Republican leadership to investigate illegal conduct during the 1996 election, which meant the foreign money influx into the DNC and the Clinton campaign. But Senator Thompson was not satisfied with the limited scope of his committee's charge. He wanted his investigation to fuel support for the McCain-Feingold-Thompson legislation he had co-sponsored in 1995. Democrats also wanted to expand the scope to Republican-leaning groups, which were not accused of wrongdoing. So Thompson and the committee Democrats joined together to demand that the investigation be expanded beyond the "illegal" activities to those falling within the Committee's broad and vague definition of "improper." Thompson was "delighted" when he got his way over strong the objection of Republicans in the Senate.

The result was that Thompson's investigation was engineered to unfold in two phases. The first phase, according to the committee's final report, would to focus on "illegal activities engaged in by candidates and political parties." The second phase would focus on "the role of non-profits and issue advocacy groups and labor unions in the 1996 elections."

The focus of phase one was obvious - - the illegality of pervasive DNC and Clinton campaign foreign contribution fund-raising. Phase two, however, was nothing more than a not-so-clandestine effort to promote campaign finance reform by investigating the so-called "improper" practices of non-profit groups engaged in the political process.

Chairman Thompson Subpoenas Conservative Non-Profit Groups

Chairman Thompson issued two waves of subpoenas during phase two. Beginning in April, dozens of Republican-leaning non-profits were hauled before the Senate Government Affairs Committee. including Americans for Tax Reform, the National Policy Forum, a think-tank founded by the Republican National Committee, and others. The RNC was subpoenaed, and interrogated about various Republican-leaning issue groups. Democrat-leaning groups were also targeted, most importantly the AFL-CIO.

On July 30th, Chairman Thompson signed a tidal wave of non-profit subpoenas, targeting an equal number of Democrat and Republican-leaning non-profits, including the National Right to Life Committee, the Christian Coalition, Citizens for a Sound Economy, the Heritage Foundation and Citizens Against Government Waste. These invasive subpoenas sought internal strategy documents and communications with other organizations, federal office holders, the Federal Election Commission, and the IRS. These subpoenas were strongly resisted on First Amendment grounds, ultimately successfully, since the effectiveness of these groups would be destroyed if their confidential communications were revealed to the government and their political opponents.

The Thompson Committee Report

In March 1998, the Thompson committee issued a Majority and Minority Report. The Majority Report focused on the Democrat foreign money scandals, but "added little of note to what was already known about John Huang, Roger Tamraz, the Hsi Lai Temple, and Vice President Gore's phone calls." And while the Majority Report found that "it would be irresponsible to draw inferences about serious allegations of illegality and impropriety" regarding the conduct of most nonprofit groups, the report nevertheless presented tow alternative ways that issue advocacy by non-profits could be prohibited, a redefinition of "express advocacy" and an "electioneering communication" provision. Furthermore, as a result of the expanded scope of the Thompson investigation, the Minority Report was able "to find a Republican transgression to match every Clinton misstep."

Conservatives were profoundly disappointed, with the Weekly Standard proclaiming that Thompson "blew it," because of his decision to "shift [the] focus" from "fund-raising scandals" to "campaign finance legislation." Some were even harsher. A columnist for The Knoxville News-Sentinel wrote, "Senator Fred Thompson, fresh from his 1996 re-election by Tennesseans, soared into national fame with a big buildup over his prospects of using an investigation into campaign finance reform as a springboard for the presidency. Sinking ensued. Perhaps Time summed the situation up when it classified Thompson as among the losers of 1997: 'His hearings promised much and delivered little. Forget the presidency. Can he still go back to Hollywood?'"

Senate Action on McCain-Feingold-Thompson

From his first year in Congress, Senator Thompson was a prime sponsor of Senator McCain's campaign finance legislation. On September 5, 1995, Senator Thompson proudly announced the introduction of S. 1219, the "McCain-Feingold-Thompson" campaign finance bill, which, among other things, sought to increase the regulation of issue ads. Clinton subsequently endorsed "McCain-Feingold-Thompson," which Senator Thompson "welcomed."

On January 21, 1997, McCain-Feingold-Thompson was reintroduced as S. 25, which borrowed heavily from the 1995 version and included issue advocacy restrictions. Again the bill "redefined" express advocacy to sweep in any communication the "refers to a clearly identified candidate" that "a reasonable person" would understand as advocating the election or defeat of the candidate, and that was made within 30 days of a primary and 60 days of a general election. These bills engendered enormous conservative opposition and were killed by Senate Republican filibusters.

Finally, in 2001, S. 27 was introduced by Senator McCain, with Senator Thompson as a co-sponsor. This bill now contained today's full fledged "electioneering communication" prohibition, also know as Snow-Jeffords, which prohibited corporation and labor unions from running broadcast ads within 30 days of a primary and 60 days of a general election that "refer to a clearly identified candidate for federal office." When Senator Mike DeWine sought to strike the "electioneering communication" prohibition on March 29, 2001, it was defeated, with Senator Thompson opposed him.

This was no casual vote by Senator Thompson. On March 22nd, he argued on the Senate floor in favor of Snow-Jeffords' "electioneering communication" prohibition, because the Supreme Court's "express advocacy" test had allegedly proven "inadequate." On March 29th, he took the Senate floor to specifically oppose DeWine's amendment. On April 2nd, Senator Thompson voted to pass McCain-Feingold, after the Republican Senator's filibuster had been shut down. In March of 2002, the House version of McCain-Feingold returned to the Senate and Senator Thompson voted to pass the bill out of the Congress.

Supreme Court Challenges to McCain-Feingold in McConnell v. FEC and FEC v. Wisconsin Right to Life

McCain-Feingold triggered a cascade of First Amendment challenges, mounted by 84 groups and individuals in 11 federal law suits, ultimately consolidated in McConnell v. FEC. The federal district court upheld most of the legislation, but struck down the "electioneering communication" provision. All parties appealed and the showdown in the Supreme Court was scheduled for an unusual pre-term oral argument in September.

Briefs were filed by the parties involved and by numerous "friends of the court." One was from Fred Thompson, now out of the Senate, who paused to note that he was a co-sponsor of the law. Thompson's brief touted his committee's investigation and the committee's reports melodramatically concluding "that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws."

Much of Thompson brief focused on issue ads and the "electioneering communication" provision, quoting extensively from the Democrat Minority Report on the issue, including its findings that conservative groups exploited "the issue advocacy loophole." Ironically, the Majority Report, which Thompson had previously endorsed, described these Minority Report findings as "irresponsible given the limited available evidence and the lack of public hearings." The Thompson brief even credits the Minority Report's allegations against the RNC and a conservative group, Triad, which the Majority Report also specifically repudiated. The Supreme Court ultimately upheld on its face the McCain-Feingold restrictions, including the "electioneering communication" provision, in a close 5 to 4 vote.

However, the "electioneering communication" prohibition was again challenged in FEC v. Wisconsin Right to Life. WRTL sought to run broadcast ads in 2004 to lobby their two Democrat Senators to oppose the filibuster of President Bush's judicial nominees. On its second review of the issue, the Supreme Court held in June of this year that the "electioneering communication" prohibition could not be constitutionally applied to WRTL's grass roots lobbying ads. WRTL's position was supported by an incredible array of non-profit groups across the political spectrum.

“Plain-Speaking” about McCain-Feingold-Thompson

There was no more adamant supporter of campaign finance reform and the regulation of political speech and issue ads that Senator Thompson. His support was not reluctant; it was enthusiastic and repeated. He actively and enthusiastically supported regulation of and, ultimately, total prohibition of corporate and labor union issue ads, which he never viewed as a "mistake." The issue ad prohibition was not added by others, as he claimed, but was an essential feature of the campaign finance proposals he co-sponsored, voted for, and diverted his own Senate committee's investigation to justify. In short, Senator Thompson devoted much energy in the Senate to gutting the First Amendment.

There is no doubt but those of us who have fought McCain-Feingold-Thompson for decades would welcome Senator Thompson's sincere conversion to our cause. But denial and revisionist history is not a conversion, only a deception. And there is nothing "plain-speaking" about disassembling one's documented record in the Senate. Nor is Senate-career-long support for McCain-Feingold-Thompson the hallmark of a "consistent conservative."

Senator McCain owns up to his role in passing McCain-Feingold, for better or worse. Why is it the Senator Thompson does not?