Almost constitutional? (The Last Word).
Not according to Rep. Christopher Shays (R-Conn.), who sponsored the legislation in the House. Shays could not contain his glee that (as he put it) "80 to 90 percent of the law was upheld." He added: "I get down on my knees in gratitude to the court."
What kind of congressman, having sworn an oath to support the Constitution, would be thankful that only 10 to 20 percent of an act he sponsored was unconstitutional? Does Shays care about his oath of office? Isn't he acknowledging, against interest, that the court failed to strike down other unconstitutional particulars in the act? Otherwise why express delight that the court did not strike down more than it did?
Of course, Shays would be happier still if the Supreme Court were to uphold all of McCain-Feingold. And so would the act's other principal sponsors: Senators John McCain (R-Ariz.) and Russ Feingold (D-Wis.), and Rep. Marty Meehan (D-Mass.). The four proclaimed in a joint statement: "[W]hile we are pleased with the District Court's split decision upholding important provisions of the campaign finance reform law, unfortunately, it also could create serious loopholes that undermine its effectiveness. We are confident that the Supreme Court will uphold the provisions of this law as it was originally enacted.... The public is not doomed to a corrupt campaign finance system."
Corruption, in their view, is synonymous with allowing citizens to criticize government officials. "If I could think of a way constitutionally, I would ban negative ads," John McCain candidly told supporters at a campaign stop during his 2000 presidential bid.
The McCain-Feingold authors still want citizens to sit down and shut up. The working goal for U.S. congressmen these days is not preserving the Constitution but seeing how much criticism they can quash.
That's why the legislation's authors put a "severability clause" in their bill. They knew their bill was unconstitutional and would be struck down at least in part by the courts. A severability clause instructs courts to strike down only the part of an act they find unconstitutional, rather than the whole act.
The three-judge panel struck down part or all of 10 separate sections of McCain-Feingold. The congressional act is so convoluted that the two political parties held three-hour classes for political party professionals earlier this year to teach them the ins and outs of the act, if professional lobbyists need to take three-hour classes to learn how to comply with federal campaign law, what are the implications for ordinary citizen activists?
The court panel also had a difficult time interpreting the act. The three judges wrote 1,700 pages of opinion, in what could hardly be called a resounding defense of either the First Amendment or brevity. The bottom line? Judge Richard J. Leon asserted that the law should not fall for vagueness because a "person of ordinary intelligence" would have "a reasonable opportunity to know what is prohibited" under the act. Yet, ironically, all three judges on the panel disagreed with each other about the constitutionality of virtually all the particulars in the act. Of 16 different sections the court panel ruled on, the three judges only unanimously agreed on one section.
Judge Leon also claimed that the vague McCain-Feingold regulations didn't violate the First Amendment because "(1) ... individuals and other entities can avoid regulation simply by not mentioning a candidate for federal office in its ad, and (2) those groups may seek an advisory opinion from the FEC to determine whether a communication is regulated by [McCain-Feingold]." Ah, yes. Don't criticize government officials, or get permission from the government before you do, and you'll be safe.
The problem with elections is not that there are too many issue-oriented ads, but that there are too few. While official campaign ads typically only shovel out poll-tested drivel about what a nice guy the candidate is, issue ads reveal a public official's actual record.
Last fall's gubernatorial race in Massachusetts exemplifies what the future of politics will look like under McCain-Feingold. Republican candidate Mitt Romney's successful campaign set a new record for vacuous beefcake commercials. He appeared shirtless in one campaign ad, where he frolicked with family members at a lake. In another, the handsome candidate told how he--wink, wink--ran out of gas driving his date home from his high school prom. It was so romantic, his date (now wife) cooed. The latter commercial may have been Romney's most substantive, because it at least indicated, inadvertently, his stand on teenage premarital sex.
Judge Colleen Kollar-Kotelly complained in her opinion of "a campaign finance system so riddled with loopholes as to be rendered ineffective." But negative ads are not loopholes. The First Amendment was not drafted for pomographers and flag burners but for people to be able to criticize their public officials freely. If the Supreme Court fails to strike down McCain-Feingold in its fall session, we can expect a stepped-up regulatory assault on free speech in America.