The Campaign Reform Scam/Crime/Damn Outrage – Parts 1 and 2

The Future of Freedom Foundation posted online today the second part of my analysis of the McCain Feingold Bipartisan Campaign Reform Act hokum. (This is from the February issue of Freedom Daily). I am reposting it here, along with the first part of the article (posted on this blog yesterday).
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The Campaign Reform Scam Part 1 Freedom Daily January 2009
by James Bovard

In 2002, Congress passed and George Bush signed the McCain-Feingold Bipartisan Campaign Reform Act (BCRA). The McCain-Feingold Act was supposed to create an era of clean politics — uncorrupt, untainted, and far loftier than what Americans had experienced in prior decades.

If the 2008 election proved anything, it revealed that politicians cannot be trusted to clean up politics. Instead, the “reform” laws they pass are usually nothing more than attempts to suppress criticism and protect incumbents against challenge.

At the time the McCain-Feingold Act was being debated, the supposed problem plaguing American politics was the proliferation of so-called soft money — money given by individuals or political action committees in amounts not limited by federal regulations. President Bush’s solicitor general, Theodore Olson, told the Supreme Court that soft money is “a euphemism for money that’s going around the system … money that is prohibited to go to Federal elections.”

But the concept of “soft money” is itself a charade based on the idea that politicians should have almost boundless control over anything that could affect their reelection.

At the same time that Congress imposed new restrictions on citizens’ political activism, it doubled the amount of money that can be legally given to candidates (so-called hard money). During the 1999-2000 election cycle, 90 percent of the hard money went to incumbent congressmen. Incumbents received almost 10 times as much money as challengers because the incumbents are already in a position to reward donors.

Though almost all congressmen get reelected, their victories are often tarnished by the indignities they suffer along the path to perpetuating their power. The most revolutionary element of the Bipartisan Campaign Reform Act is the de facto prohibition on most issue ads on radio and television during election season. Thanks to the new act, it can be a federal crime to expose the abuses of congressmen or presidents while they are seeking reelection — usually the only time their power can be effectively challenged. The act restricts nonprofit groups’, corporations’, and other entities’ “electioneering communications” within 30 days of a primary election or 60 days of a general election. An “electioneering communication” is defined broadly enough to stifle most things that can adversely affect the voting totals of an incumbent president or member of Congress. It would have been indelicate for Congress to specifically prohibit ads criticizing incumbent politicians. Instead, it banned practically all issue ads from radio and television.

The Bill of Rights is not vague on this subject. The First Amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press.” Congress ignored this stark edict and imposed stranglehold restrictions on “electioneering communications.”

Attacking free speech

Like a bunch of amateur actors in a small-town Shakespeare performance, one congressman after another proclaimed a lofty motive for knifing the First Amendment in the debate leading to the bill’s passage. Rep. Chris Shays (R-Conn.) claimed the restrictions were actually a triumph for free speech:

The reform legislation we introduce today strengthens First Amendment values. It will ensure that elected officials are more responsive to the voices of their constituents and do not appear beholden only to big money. As your own constituents would surely tell you, stemming the tide of soft money would improve their access to government — and enhance their First Amendment rights — by allowing them to participate in the process.

“First Amendment values” became an Orwellian substitute for “freedom of speech.”

Rep. Zach Wamp (R-Tenn.) also insisted that restricting criticism of congressmen was a victory for free speech: “We need to stand up for the First Amendment and treat these groups and these people playing politics in elections the same as the candidates themselves.” The Founding Fathers forgot to include a footnote to the First Amendment specifying the need for full disclosure to the federal speech police.

Some members insisted that by betraying the Bill of Rights, Congress would restore Americans’ trust in government. Rep. Nancy Pelosi (D-Calif.) declared, “We have an opportunity today to send a valentine to the American people; to tell them they are important to us; that what they think matters to us; that they should have faith in government.” Rep. John Lewis (D-Ga.) commented, “We must pass [the campaign finance reform act] to lessen the people’s growing cynicism…. It is time to restore the people’s faith in their government.”

Nothing infuriated many solons more than negative ads. Democratic senators denounced attack ads as the equivalent of “crack cocaine,” “drive-by shootings,” and “air pollution.” Sen. John McCain (R-Ariz.) declared, “I hope that we will not allow our attention to be distracted from the real issues at hand — how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don’t aid our nation’s political dialog.”

While campaigning for the presidential nomination in December 1999, McCain announced, “If I could think of a way constitutionally, I would ban negative ads.”

Bush signed the law on March 27, 2002. He applauded the fact that the law “creates new disclosure requirements and compels speedier compliance with existing ones, which will promote the free and swift flow of information to the public regarding the activities of groups and individuals in the political process.”

Unfortunately, as Bush’s secrecy mania shows, he does not cherish the same standard of the “free and swift flow of information” regarding the government’s own activities. He declared, “All of the American electorate will benefit from these measures to strengthen our democracy.”

Supreme Court review

The new law was quickly challenged and ended up in the Supreme Court on September 8, 2003. Many incumbents were bitter about the burden of fundraising. Dietary freedom was a major goal of the new law: Theodore Olson, recited tales of woe by senators “who describe what it’s like, the breakfasts, the lunches, the receptions, the dinners, the endless cycle of campaign finance.” Chief Justice Rehnquist retorted, “I don’t believe [it] is a permissible basis for a restriction that, you know, we’re tired of having to go to these breakfasts and lunches.” Some of the new law’s supporters presumed that if members of Congress were not so busy raising money, they might even begin reading the bills they vote on and perhaps even become zealous at oversight. Such naiveté would be touching if it was not countenancing the sacrifice of some people’s freedom to augment other people’s leisure.

On December 10, 2003, the Supreme Court upheld most provisions of the law by a 5 to 4 vote. The ban on issue ads survived intact. The majority decision offered endless hairsplitting about “electioneering communications.” The Supreme Court did not deign to explain why Americans should have more unfettered access to bestiality videos than to information about what their rulers were doing to them.

The majority of the justices concluded that the pervasive new restrictions were justified to reduce the American political system’s corruption or the appearance of corruption. The Court’s decision repeatedly derided “so-called issue advocacy” — as if any comments on public policy during election season are inherently suspect. The Court justified greatly expanding federal restrictions on speech because “the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad.” The Court noted that its earlier decisions exempting “express advocacy” from restrictions “has not aided the legislative effort to combat real or apparent corruption.” Public communications “that promote or attack a candidate for federal office … undoubtedly have a dramatic effect on federal elections. Such ads were a prime motivating force behind BCRA’s passage,” the Court noted. The Court declared that “any public communication that promotes or attacks a clearly identified federal candidate directly affects the election in which he is participating.” So, the Court reasoned, members of Congress were entitled to restrict such communications. It explained: “Congress enacted the new ‘electioneering communications’ provisions precisely because it recognized that the express advocacy test was woefully inadequate at capturing communications designed to influence candidate elections.” But who entitled Congress to “capture” everything intended to influence an election? Does the Supreme Court believe that incumbents are practically entitled to mind control over the voters?

The Supreme Court ruled that pre-election issue ads can be criminalized: even if “advertisements do not urge the viewer to vote for or against a candidate in so many words they are no less clearly intended to influence the election.” It denounced “sham ads” but never defined the word “sham.” Paul Jacob, former chief of U.S. Term Limits, a nonprofit group that fights corruption by ending congressmen’s tenured status, commented, “Perhaps labeling an advertisement a ‘sham’ is like naming someone an ‘enemy combatant’ — all constitutional rights are then lost.” The Supreme Court sacrificed freedom to fairness — in this case, protecting politicians from potentially unfair criticism.

The profound philosophical issues in the decision were largely ignored in the media’s coverage. Instead, most story lines simply portrayed the decision as a victory over conniving special interests. Justice Clarence Thomas rightly declared that the decision “upholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War.”

Scalia’s dissent

Justice Scalia, in a noble dissent, warned that the law “cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” He declared that “this legislation prohibits the criticism of members of Congress by those entities most capable of giving such criticism a loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort.” He hinted that some members of Congress “who voted for this legislation did so not to produce ‘fairer’ campaigns, but to mute criticism of their records and facilitate reelection.”

Scalia noted how the decision attacked both freedom of speech and freedom of association: “The freedom to associate with others for the dissemination of ideas — not just by singing or speaking in unison, but by pooling financial resources for expressive purposes — is part of the freedom of speech.” He captured the transcendent issue before the Court: “This litigation is about preventing criticism of the government.” Preserving the government’s reputation now trumps the people’s rights.

Seth Waxman, a former U.S. solicitor general who argued in favor of the law to the Supreme Court, hailed the verdict: “Congress is not handcuffed by the First Amendment.” But if Congress is not handcuffed by the First Amendment, then what could possibly curb its power?

**************PART 2******************************

We saw in the last issue how the McCain-Feingold Act — the Bipartisan Campaign Reform Act of 2002 (BCRA) — sought to fundamentally change the American political landscape. Politicians did not allow the Act’s power to lie idle in the first presidential election after its enactment.

The BCRA’s issue-ad ban — the peril that Justice Antonin Scalia targeted in his dissent to the Supreme Court decision upholding the act — quickly helped muzzle potential critics of incumbents.

The BCRA “protects” citizens from exposure to a sweeping array of messages. The AFL-CIO noted that the act prohibits pre-election ads that

call upon a Member of Congress to support or oppose imminent legislation, or ask viewers or listeners to urge the member to do so; inform the public, or express an opinion, about a Member of Congress’s votes, legislative proposals or performance otherwise; respond directly to a Member [of Congress] who has criticized the [independent] organization or taken issue with its activities or policies; or encourage candidates to commit that, if elected, they will support or oppose particular legislation or policies.

The issue-ad ban strikes across the board, muzzling the National Abortion Rights League and the American Life League, the National Rifle Association and the Brady Campaign to Ban Handguns, the Sierra Club and the American Civil Liberties Union.

On March 11, 2004, the Federal Election Commission proposed sweeping rules that could reclassify thousands of nonprofit organizations as federal “political committees” if they spent more than $1,000 on any type of activity related to a presidential or congressional election. The Coalition to Protect Nonprofit Advocacy, an organization with 600 members from across the ideological spectrum, complained, “Under the proposed rules, nonprofits would be virtually prohibited from criticizing or praising President Bush until after the November election.” The proposed regulations are so sweeping that “a church … could not publish a legislative report card during an election year…. The NAACP would have to stop its 2004 voter registration campaigns,” the Coalition declared. A group of 120 House Democrats protested to the FEC, “There has been absolutely no case made to Congress, or record established by the commission, to support any notion that tax-exempt organizations and other independent groups threaten the legitimacy of our government when criticizing its policies.”

The Drug Policy Alliance warned that the proposed rules “represent one of the worst assaults on the freedoms of speech and association ever proposed in the United States” and that the rules could “silence our work to end the government-funded War on Drugs.”

Suppressing speech

The Bush legal team quickly used the new law to seek to suppress private groups from criticizing the president any time during an election year. In early 2004, left-wing and anti-war groups launched advertisements criticizing Bush and his record. The Republican National Committee on March 5, 2004, formally warned 250 television stations not to play the ads. RNC chief counsel Jill Holtzman Vogel asserted that the ads by MoveOn.org violated the new campaign-finance act. Vogel declared, “Between now and November, our nation will engage in a debate that pits President Bush’s strong and steady leadership against others who seek to attack the President and engage in a vicious, negative campaign.”

Vogel hinted that the stations’ survival could be on the line: “As a broadcaster licensed by the Federal Communications Commission, you have a responsibility to the viewing public and to your licensing agency to refrain from complicity in any illegal activity.”

Vogel explained that under the new campaign law, “any entity that spends or raises more than $1,000 in a calendar year ‘for the purpose of influencing any election for federal office’ must register as a federal political committee” with the FEC. Vogel asserted that MoveOn.org could not use “soft money” for its supposedly illegal ad campaign.

A few days later, Bush’s reelection campaign formally requested the Federal Election Commission to launch an investigation of the Media Fund, another group running advertisements critical of Bush. The Bush campaign’s general counsel, Tom Josefiak, condemned the ads as “an attempt to blow up the ban on the newly passed campaign finance reform bill.”

Media Fund spokesman James Jordan denounced the Bush campaign’s allegation as “a lie, a deliberate misrepresentation of the law. This is nothing more than a cynical and transparent attempt to intimidate our donors and silence dissenting voices.”

On April 5, Bush campaign chairman Marc Racicot urged supporters to contact the FEC to urge them to crack down on the ad campaigns criticizing the president. Racicot’s appeal generated 66,000 emails to the agency. (The FEC decided to postpone imposing restrictions on certain nonprofit groups until after the 2004 election.)

At the same time that Republicans pressured the FEC to ban the activities of the new groups, they hinted that they could file criminal referrals directly with the Justice Department. The new campaign law includes prison time for types of offenses previously punished only by fines. The Hill reported on March 25 that “some Republican operatives, including a senior Bush adviser, have said they expect complaints to be filed directly with the Department of Justice.” Some Republicans suggested criminal prosecution would be appropriate for the large donors to the new groups.

At the same time the Republican National Committee sought to suppress the Moveon.org ads, Bush was traveling around the country on taxpayer-financed fundraising gigs. The president has the right to dishonestly send hundreds of Americans to their deaths in foreign wars, but American citizens have little or no right to expose his lies during a time when he is seeking to perpetuate his power over them.

At the same time the Bush campaign and the Republican National Committee sought to use federal law to bludgeon critics into silence, the president’s reelection campaign began running television ads hyping Bush’s leadership and showing a dead person being carried out of the World Trade Center wreckage. If a private group ran an ad with exactly the same video images and different audio comments criticizing Bush, the president’s lawyers almost certainly would have used the new law to seek to suppress the ads.

By banning the mention of politicians’ names in ads in the months before an election, the Act makes it far more difficult to inform Americans about who is responsible for what the government has done. It could have been construed as a federal crime for a private group to pay to broadcast in September and October of 2004 the fact that a given congressman had voted for the USA PATRIOT Act. Even a simple “tombstone” television ad — stating in large print, “Rep. Smith Voted for the PATRIOT Act” — could have been judged illegal. Regardless of how much power the PATRIOT Act confers upon the government, it could be a criminal offense to publicize a congressman’s support for it. Similarly, an October 2004 television advertisement merely listing Attorney General John Ashcroft’s mildly deranged statements could have been considered illegal as an unfair attack on the president’s reelection campaign.

Immunizing the feds

Though independent groups are prohibited from criticizing congressmen, congressmen have unlimited freedom to attack such groups and anyone else they please. U.S. Term Limits’s Paul Jacob noted that an incumbent congressman “could run ads at election time slamming [a] group and wildly distorting the truth. While spot after spot by the congressman plays on television screens mercilessly smearing the organization, the federal speech Gestapo will be there to make certain that the insolent group is not permitted to air a single ad which dares mention the powerful congressman by name or, heaven forbid, show his or her royal likeness.” This is Congress’s idea of a level playing field.

The McCain-Feingold Act was enacted in part because congressmen claimed that political “issue ads” are so poisonous that they destroy the chances for clean elections. But the government’s own actions make campaign “issue ads” look downright innocuous. No “issue ad” ever affected as many Americans as did the film footage of FBI tanks smashing into the Branch Davidians’ home in Waco, Texas. No “issue ad” shook as many people as the photograph of a federal agent pointing a submachine gun towards terrified six-year-old Elián Gonzalez, whom Attorney General Janet Reno sent 130 G-men to seize in the middle of the night on April 22, 2000.

The Supreme Court sacrifices freedom to protect Americans against “sham ads.” But this does nothing to ban or rein in sham politicians. And what about sham wars? What about the sham TSA? What about the other sham antiterrorism efforts? What about the sham farm subsidies? Regardless of how many shams politicians concoct, a purity test is now required for all critics.

There is no way to clean up American politics without greatly decreasing the power of politicians to buy votes. This is the heart of the corruption, and nothing in the BCRA comes within a million miles of touching that power. The fundamental problem with the federal government is that its power is nearly boundless. The BCRA expands that power by suppressing criticism of government.

While congressmen portrayed the BCRA as a strike against greedy special interests, there was no recognition that government itself is the most powerful and most dangerous special interest. In the name of curbing special interests, Congress made it more difficult to curb government power.

The issue-ad ban is nothing more than unilateral political disarmament of the victims of the federal government. Congress criminalized the effective exposure of its own wrongdoing. Instead, groups can criticize members of Congress only during times when most voters are not paying attention. In most elections, political illiterates are the largest single voting bloc.

The Supreme Court effectively decreed that the American people will be better served if their rulers are less criticized. That is not a doctrine fit for a free people. As Justice Scalia noted in his dissent,

The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth.

What gives our rulers the right to dictate how and when they may be criticized? The fact that Congress would pass, the president would sign, and the Supreme Court would uphold the ban on issue ads is itself proof of profound corruption in Washington.

Maintaining trust in government is not more important than preserving freedom. We cannot “clean up democracy” by making political speech more regulated than hazardous waste disposal.