John McCain's War on Political Speech: How the Arizona Senator and Other Campaign Finance Reformers Use the Law to Muffle Critics and Trample the First Amendment

Article excerpt

During Bradley A. Smith's legendarily testy 2000 confirmation hearing for a slot on the Federal Election Commission (FEC), senators piled on the insults like pork for home-state contractors. None were more effusive in their outrage than the Glimmer Twins of campaign finance reform, Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), whose eponymous legislation, also known as the Bipartisan Campaign Reform Act of 2002, has helped usher in a repressive age of limits on explicitly political speech.

Putting Smith, a Harvard-trained lawyer who was then 42 years old, on the commission responsible for making sure campaigns followed the law would be "akin to confirming a conscientious objector to be secretary of defense," thundered McCain. "Smith on the FEC would really be a case of the fox guarding the hen house," chimed in Feingold. Al Gore, who as vice president ruled over the Senate, sniffed that Smith was "unfit for office" despite an enviable record of scholarly publications. Yet Smith, whose nomination was strongly supported by Sen. Mitch McConnell (R-Ky.), not only passed senatorial muster but went on to serve as chairman of the FEC before resigning his post this year.

What follows is an edited transcript of an April 18 speech that Smith delivered at Capital University in Columbus, Ohio, as part of the George H. Moor Chair Lecture Series. Smith, who first joined the law faculty at Capital in 1993, has returned to teaching law there after resigning his FEC post in August.

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Polls consistently show that campaign finance reform is an extremely low priority for most Americans. It's not an issue that Americans wake up thinking about, even while pondering politics. It may seem like an obscure regulatory system that has very little effect on our daily lives, or even our political lives. But it's an assault on the First Amendment and a transfer of power from citizens to incumbent politicians, one that doesn't address far more serious conflicts of interest, including those of politicians who bang the campaign finance drum the loudest. As I step down as chairman of the Federal Election Commission, I fear that the regulatory machinery set in motion by Sens. John McCain and Russ Feingold will be used to further grind down the free expression of individual citizens.

Before I discuss this, here is a very limited overview of what we call the limits, prohibitions, and reporting requirements of the Federal Election Campaign Act, or FECA.

FECA's provisions create a very complex matrix that depends on who is giving to whom. But to oversimplify, individuals can give a candidate no more than $2,200 per election; a political action committee (or PAC), which is merely a group of people pooling their small contributions, can give up to $5,000 to a candidate per election; and an individual can give up to $5,000 to a PAC per year. There are other limits on how much you can give to political parties, and there are overall limits on how much a person can give in a two-year period, but to keep this simple I want to focus on contributions by people to candidates. The list of prohibitions also includes bans on direct contributions by corporations, labor organizations, federal contractors, or foreign nationals to candidates and committees. Additionally the law prohibits the conversion of campaign funds for personal use, and then there are a wide variety of reporting requirements, things that have to be reported to the federal government, including the name, address, and occupation of donors contributing over $200--creating a sort of federal database of citizen political activity.

In the legislative record there is considerable evidence that many supporters of McCain-Feingold specifically wanted the law to silence criticism of their own performance in office. The act includes a provision that prohibits most citizen groups, such as the National Rifle Association, the Sierra Club, and Planned Parenthood, from making any broadcast advertisements within 60 days of an election that even mention a candidate for federal office. …