The Fundamental Flaws in the McCain-Feingold Law

Posted: Apr 25, 2007 10:13 AM
The Fundamental Flaws in the McCain-Feingold Law

As I have traveled the country in connection with my campaign for President, I have been inspired by the commitment of countless Americans to shaping the future of America's political system. Their commitment takes many different forms, from distributing literature, to attending a campaign rally, to contributing money to an individual candidate. I applaud this involvement, even if it is not supportive of my candidacy. An informed and active citizenry is vital to the long-term health of our political system.

Washington's back-scratching political class apparently sees it differently. A few years ago, they locked arms around a measure sponsored by Senators John McCain, a Republican, and Russ Feingold, a Democrat, imposing unprecedented restrictions on the political activities of everyday Americans. Initiatives that had been legal for as long as anyone could remember were suddenly transformed into sanctionable offenses, all under the guise of "campaign finance reform."

I have not spent a career in politics, but I know enough about the laws of this country, and the way Washington works, to understand that the McCain-Feingold law is riddled with shortcomings.

Let's start with something basic: the American people should be free to advocate for their candidates and their positions without burdensome limitations. Indeed, such advocacy can play an important educational role in elections, helping to provide information to voters on a range of issues. Do we really want government telling us when we can engage in political speech, and what form it can take?

Yet McCain-Feingold prohibits some non-profits from broadcasting messages that mention the name of a federal candidate within 30 days of a primary or in the months leading up to the general election. This Free Speech Blackout Period – also called the "electioneering communications ban" – is contrary to the spirit of a free and open issues debate. It also has the perverse effect of silencing some non-profit groups while empowering special interest groups.

As syndicated columnist George Will has pointed out, McCain-Feingold "regulates the quantity, timing and content of political speech … making it increasingly acceptable for interest groups to attempt to advance their social agendas by limiting their adversaries' speech."

The original intent of McCain-Feingold was to reduce the role of money and special interests in our political system. But on this too it has been a failure. Political spending has been driven into secret corners and more power and influence has been handed to hidden special interests. What is really needed is greater transparency, and disclosure, of campaign contributions – not more restrictions on political speech.

The American people should be able to exercise their First Amendment rights without having to think about hiring a lawyer. But that is the direction in which we are headed. In 2004, the non-profit group Wisconsin Right to Life wanted to run grassroots radio and television ads urging people in the state to contact their Senators (which the ads mentioned by name) and ask them to oppose the ongoing filibusters of President Bush's judicial nominees. A provision in McCain-Feingold, however, was used to argue that the ads were illegal. Rendering a verdict on what constitutes acceptable political speech is something for voters – not judges – to decide.

So who, other than lawyers trained in the intricacies of federal campaign law, has benefited from McCain-Feingold? Washington's political class. Restricting political speech ultimately hurts those in the greatest need of political speech – challengers to incumbent politicians (thus the joke that McCain-Feingold should be called the "Incumbent Protection Act"). Do we really need Washington politicians doing themselves more favors to protect their jobs?

America has a rich history of protecting speech, and these protections draw on the unambiguous language of the Constitution: "Congress shall make no law … abridging the freedom of speech." We step into dangerous territory when politicians start eviscerating our fundamental freedoms in the name of amorphous principles, like campaign finance reform. If I am elected President, a top priority will be to push for the repeal of this deeply-flawed measure, and restore the full freedom of political participation and expression to the American people.