Everybody seems to agree that this law at a minimum needs some major tweaking. I say it’s
time to throw it out altogether.

The Bipartisan
Campaign Reform Act of 2002, popularly known as the McCain-Feingold legislation, was
intended to limit campaign spending and the influence of corporations and special interest
groups in American politics. An articulation of its rationale can be found here. One of
the ways that the bill sought to achieve its goals was by broadening the definition of public
communication and federal election activities in which corporations are prohibited from
participating.

So what exactly now defines prohibited participation in an election? When Congressman David
Dreier (R-CA) ran into a withering hail of criticism last October for his position on
immigration from co-hosts John Kobylt and Ken Chiampou at Los Angeles radio station KFI, the National Republican
Congressional Committee filed a
complaint with the Federal Election Commission, arguing that, since the radio station on
which the views were expressed was owned by a corporation, these broadcasts represented an
illegal corporate contribution to the campaign of Dreier’s opponent, Democrat Cynthia Matthews.
The NRCC complaint further argued that, under McCain-Feingold, the radio hosts could personally
be criminally prosecuted for felonies for assisting in Matthews’ campaign in this way, specifically mentioning a 5-year jail term. To be
sure, the radio hosts had been vitriolic in their attacks on Dreier, and described their agenda
openly as a “fire Dreier” campaign. But is it really a felony in America today to say loudly
and repeatedly that a certain elected official needs to be dumped?

The blogosphere took this issue more personally when the DC District Court ruled last September
that these McCain-Feingold restrictions potentially also apply to anyone writing a weblog.
Bradley Smith, who is one of the six commissioners of the Federal Election Commission, worried in a CNET interview this March about the kinds of questions that he and his
fellow commissioners would now be asked to resolve: “Would a link to a candidate’s page be a
problem? If someone sets up a home page and links to their favorite politician, is that a
contribution?”

Bloggers of both the left (like Atrios
and Daily Kos) and the right
(like Captain Ed and
Redstate.org) were outraged by
that suggestion. This outrage has also found expression in Senate Bill S.678 introduced by Sen. Harry Reid (D-NV), with a companion House bill sponsored
by Rep. Jeb Hensarling (R-TX), that would exempt the internet from the McCain-Feingold
definition of “public communication.”

It will be nice if the better judgment of the FEC commissioners or the U.S. Congress will
find ways to protect us from threats, such as Kobylt and Chiampou received from the NRCC, to put
people in jail for expressing their political views. But we shouldn’t need to count on the
wisdom of commissioners or senators to protect us– that protection is supposed to be provided
by the U.S. Constitution.

Are the costs in terms of freedom of speech from McCain-Feingold outweighed by some other
benefits? Now that we’ve seen it in operation through the 2004 election cycle, it seems
appropriate to take stock on just how well the legislation has worked out in practice.

It seems to me that the primary way in which the 2004 election differed from previous ones
is in the prominent role played by 527 organizations such as the Swiftboat Veterans on the right and moveon.org on the left. These organizations escaped
regulation by the FEC because they claimed to operate independently of the leading candidates or
parties, despite the fact that each was clearly committed to the mission of defeating a
particular candidate in the presidential election. The result was an unofficial campaign attack
machine, in which the candidate actually running could claim to have no responsibility for the
charges being leveled against his opponent and therefore not be held accountable for either the
substance or the tone of the charges. Can somebody explain to me why that’s a more sensible way
for campaigns to be run?

I’m not alone in thinking that McCain-Feingold did not work out quite as planned in 2004, as
evidenced in part by the fact that there are over half a dozen bills currently
pending before Congress to amend it, including two co-sponsored by McCain himself. Although
there may be broad agreement that the legislation didn’t work out that well, there is a
fundamental disagreement as to whether that’s because McCain-Feingold just needs to be tweaked
and refined a bit more cleverly, or because the idea was at its core fundamentally unsound. If
you don’t like the way that the 527’s changed the nature of campaigns (and I don’t), you either
have to come up with even stricter rules about what can and can’t be expressed and by whom in a
political debate, or else you have to lighten up on the restrictions that pushed campaign money,
like toothpaste through the tube, into the 527’s. I agree with Jonathan Rauch’s assessment: “Congress and
the country are on the brink of deciding between unlimited contributions in politics or
unlimited regulation of politics.”

As a realist, I recognize that outright repeal of McCain-Feingold is probably infeasible.
Given that, several of the pending bills certainly look like an improvement over the status quo.
Reid’s bill, for example, which would declare that McCain-Feingold does not apply to political
views expressed over the internet, strikes me as an unambiguously good idea. I just think it
would be an unambiguously even better idea if we declared that McCain-Feingold also does not
apply to political views expressed over the radio, television, in newspapers, or on the street
corner as well.

America ought to be a place where anybody can criticize an elected official, and try to
organize others to throw the rascal out of office, without facing the threat themselves of being
thrown in jail or having their little blog shut down.