Money and Speech
On March 20, 2002, the United States Senate, by a vote of 60 to 40, passed the McCain-Feingold Act, otherwise known as the Bipartisan Campaign Reform Act of 2002.1 Because the House of Representatives had already passed it, the bill needed only President George W. Bush's signature to become law. Despite his past promises to the contrary and urgent pleas from leaders of his political party, Bush signed the bill into law on March 27. He described the bill as “flawed,” however, and refused to hold a public ceremony for the signing, a typical ritual for major legislation. The law's chief sponsor, Senator John McCain (R-AZ), learned about the signing from a White House staff member. Afterwards, Bush left for a three-state fundraising trip for Republicans. Later that same day, opponents filed suit in federal court seeking to have the new law declared unconstitutional.2 After five years of struggle in the legislature, the fate of the new law shifted to the courts. Near the end of 2003, McCain and his allies would also win in that forum. The partisans of the law rejoiced.
In the pages that follow I argue that the victory of McCain-Feingold— indeed, the sheer existence of almost all federal campaign finance law—is reason for lamentation, not rejoicing. For more than three decades the federal government has widened its ambit over the financing of electoral struggle, making everything from small contributions to advertising for political documentaries a matter of government control and oversight. Today no one should exercise his or her First Amendment right to freedom of speech without advice from counsel, preferably one schooled in the intricacies of campaign finance regulation. In the United States, speech is no longer very free in any sense of the word.
How did we reach this point? As always with restrictions on free speech,