{"id":932,"date":"2009-05-27T12:49:00","date_gmt":"2009-05-27T17:49:00","guid":{"rendered":"http:\/\/jimbovard.com\/blog\/?p=932"},"modified":"2009-05-27T12:50:02","modified_gmt":"2009-05-27T17:50:02","slug":"the-campaign-reform-crime-or-scam","status":"publish","type":"post","link":"https:\/\/jimbovard.com\/blog\/2009\/05\/27\/the-campaign-reform-crime-or-scam\/","title":{"rendered":"The Campaign Reform Crime (or Scam?)"},"content":{"rendered":"

The Future of Freedom Foundation posted online <\/a>today my article from the January issue of Freedom Daily on campaign reform scams. This is the first part of a two-part series on the McCain-Feingold act and related hokum.
\n********************************<\/p>\n

The Campaign Reform Scam<\/strong> Part 1 Freedom Daily <\/em>January 2009
\nby James Bovard<\/p>\n

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 \u2014 uncorrupt, untainted, and far loftier than what Americans had experienced in prior decades. <\/p>\n

If the 2008 election proved anything, it revealed that politicians cannot be trusted to clean up politics. Instead, the \u201creform\u201d laws they pass are usually nothing more than attempts to suppress criticism and protect incumbents against challenge. <\/p>\n

At the time the McCain-Feingold Act was being debated, the supposed problem plaguing American politics was the proliferation of so-called soft money \u2014 money given by individuals or political action committees in amounts not limited by federal regulations. President Bush\u2019s solicitor general, Theodore Olson, told the Supreme Court that soft money is \u201ca euphemism for money that\u2019s going around the system … money that is prohibited to go to Federal elections.\u201d <\/p>\n

But the concept of \u201csoft money\u201d is itself a charade based on the idea that politicians should have almost boundless control over anything that could affect their reelection. <\/p>\n

At the same time that Congress imposed new restrictions on citizens\u2019 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. <\/p>\n

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 \u2014 usually the only time their power can be effectively challenged. The act restricts nonprofit groups\u2019, corporations\u2019, and other entities\u2019 \u201celectioneering communications\u201d within 30 days of a primary election or 60 days of a general election. An \u201celectioneering communication\u201d 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. <\/p>\n

The Bill of Rights is not vague on this subject. The First Amendment states that \u201cCongress shall make no law … abridging the freedom of speech, or of the press.\u201d Congress ignored this stark edict and imposed stranglehold restrictions on \u201celectioneering communications.\u201d <\/p>\n

Attacking free speech<\/strong><\/p>\n

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\u2019s passage. Rep. Chris Shays (R-Conn.) claimed the restrictions were actually a triumph for free speech: <\/p>\n

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 \u2014 and enhance their First Amendment rights \u2014 by allowing them to participate in the process. <\/em><\/p>\n

\u201cFirst Amendment values\u201d became an Orwellian substitute for \u201cfreedom of speech.\u201d <\/p>\n

Rep. Zach Wamp (R-Tenn.) also insisted that restricting criticism of congressmen was a victory for free speech: \u201cWe 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.\u201d The Founding Fathers forgot to include a footnote to the First Amendment specifying the need for full disclosure to the federal speech police. <\/p>\n

Some members insisted that by betraying the Bill of Rights, Congress would restore Americans\u2019 trust in government. Rep. Nancy Pelosi (D-Calif.) declared, \u201cWe 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.\u201d Rep. John Lewis (D-Ga.) commented, \u201cWe must pass [the campaign finance reform act] to lessen the people\u2019s growing cynicism…. It is time to restore the people\u2019s faith in their government.\u201d <\/p>\n

Nothing infuriated many solons more than negative ads. Democratic senators denounced attack ads as the equivalent of \u201ccrack cocaine,\u201d \u201cdrive-by shootings,\u201d and \u201cair pollution.\u201d Sen. John McCain (R-Ariz.) declared, \u201cI hope that we will not allow our attention to be distracted from the real issues at hand \u2014 how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don\u2019t aid our nation\u2019s political dialog.\u201d <\/p>\n

While campaigning for the presidential nomination in December 1999, McCain announced, \u201cIf I could think of a way constitutionally, I would ban negative ads.\u201d <\/p>\n

Bush signed the law on March 27, 2002. He applauded the fact that the law \u201ccreates 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.\u201d <\/p>\n

Unfortunately, as Bush\u2019s secrecy mania shows, he does not cherish the same standard of the \u201cfree and swift flow of information\u201d regarding the government\u2019s own activities. He declared, \u201cAll of the American electorate will benefit from these measures to strengthen our democracy.\u201d <\/p>\n

Supreme Court review<\/strong><\/p>\n

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 \u201cwho describe what it\u2019s like, the breakfasts, the lunches, the receptions, the dinners, the endless cycle of campaign finance.\u201d Chief Justice Rehnquist retorted, \u201cI don\u2019t believe [it] is a permissible basis for a restriction that, you know, we\u2019re tired of having to go to these breakfasts and lunches.\u201d Some of the new law\u2019s 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 naivet\u00e9 would be touching if it was not countenancing the sacrifice of some people\u2019s freedom to augment other people\u2019s leisure. <\/p>\n

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 \u201celectioneering communications.\u201d 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. <\/p>\n

The majority of the justices concluded that the pervasive new restrictions were justified to reduce the American political system\u2019s corruption or the appearance of corruption. The Court\u2019s decision repeatedly derided \u201cso-called issue advocacy\u201d \u2014 as if any comments on public policy during election season are inherently suspect. The Court justified greatly expanding federal restrictions on speech because \u201cthe presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad.\u201d The Court noted that its earlier decisions exempting \u201cexpress advocacy\u201d from restrictions \u201chas not aided the legislative effort to combat real or apparent corruption.\u201d Public communications \u201cthat 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\u2019s passage,\u201d the Court noted. The Court declared that \u201cany public communication that promotes or attacks a clearly identified federal candidate directly affects the election in which he is participating.\u201d So, the Court reasoned, members of Congress were entitled to restrict such communications. It explained: \u201cCongress enacted the new \u2018electioneering communications\u2019 provisions precisely because it recognized that the express advocacy test was woefully inadequate at capturing communications designed to influence candidate elections.\u201d But who entitled Congress to \u201ccapture\u201d everything intended to influence an election? Does the Supreme Court believe that incumbents are practically entitled to mind control over the voters? <\/p>\n

The Supreme Court ruled that pre-election issue ads can be criminalized: even if \u201cadvertisements 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.\u201d It denounced \u201csham ads\u201d but never defined the word \u201csham.\u201d Paul Jacob, former chief of U.S. Term Limits, a nonprofit group that fights corruption by ending congressmen\u2019s tenured status, commented, \u201cPerhaps labeling an advertisement a \u2018sham\u2019 is like naming someone an \u2018enemy combatant\u2019 \u2014 all constitutional rights are then lost.\u201d The Supreme Court sacrificed freedom to fairness \u2014 in this case, protecting politicians from potentially unfair criticism. <\/p>\n

The profound philosophical issues in the decision were largely ignored in the media\u2019s coverage. Instead, most story lines simply portrayed the decision as a victory over conniving special interests. Justice Clarence Thomas rightly declared that the decision \u201cupholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War.\u201d <\/p>\n

Scalia\u2019s dissent<\/strong><\/p>\n

Justice Scalia, in a noble dissent, warned that the law \u201ccuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.\u201d He declared that \u201cthis 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.\u201d He hinted that some members of Congress \u201cwho voted for this legislation did so not to produce \u2018fairer\u2019 campaigns, but to mute criticism of their records and facilitate reelection.\u201d <\/p>\n

Scalia noted how the decision attacked both freedom of speech and freedom of association: \u201cThe freedom to associate with others for the dissemination of ideas \u2014 not just by singing or speaking in unison, but by pooling financial resources for expressive purposes \u2014 is part of the freedom of speech.\u201d He captured the transcendent issue before the Court: \u201cThis litigation is about preventing criticism of the government.\u201d Preserving the government\u2019s reputation now trumps the people\u2019s rights. <\/p>\n

Seth Waxman, a former U.S. solicitor general who argued in favor of the law to the Supreme Court, hailed the verdict: \u201cCongress is not handcuffed by the First Amendment.\u201d But if Congress is not handcuffed by the First Amendment, then what could possibly curb its power? <\/p>\n","protected":false},"excerpt":{"rendered":"

The Future of Freedom Foundation posted online today my article from the January issue of Freedom Daily on campaign reform scams. This is the first part of a two-part series on the McCain-Feingold act and related hokum. ******************************** The Campaign Reform Scam Part 1 Freedom Daily January 2009 by James Bovard In 2002, Congress passed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[22,659,6,10,32,658,17,31],"class_list":{"0":"post-932","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"hentry","6":"category-uncategorized","7":"tag-attention-deficit-democracy","9":"tag-bovard","10":"tag-bush","11":"tag-bush-betrayal","12":"tag-congress","13":"tag-elective-dictatorship","14":"tag-wool"},"yoast_head":"\nThe Campaign Reform Crime (or Scam?) - James Bovard<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/jimbovard.com\/blog\/2009\/05\/27\/the-campaign-reform-crime-or-scam\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Campaign Reform Crime (or Scam?) - James Bovard\" \/>\n<meta property=\"og:description\" content=\"The Future of Freedom Foundation posted online today my article from the January issue of Freedom Daily on campaign reform scams. 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The Wall Street Journal called Bovard \"the roving inspector general of the modern state\" and Washington Post columnist George Will called him a \"one-man truth squad.\" His 1994 book, Lost Rights: The Destruction of American Liberty, received the Free Press Association\u2019s Mencken Award as Book of the Year. His Terrorism & Tyranny won the Lysander Spooner \"Best Book on Liberty in 2003\" award. He received the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought and the Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. 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