Econbrowser

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.