The McCain-Feingold campaign finance reform bill the Senate passed has one huge constitutional problem. It would regulate what can and cannot be said in so-called "issue ads" that are broadcast within 60 days of a general election and within 30 days of a primary. This is a direct attack on the First Amendment's guarantee of free speech and is unlikely to hold up in court.
For this and other reasons, the House ought to reject the bill. Its scope is not only illegal, it will ultimately fail to provide any meaningful solution to the corrupting influence of money on elections. But its free-speech impingements are most troubling.
One opponent said the senators who voted for it were mainly concerned with controlling things that are said about them. The next logical step would be to control this in the print media, as well. That may be far from the minds of most senators at the moment, but it seems to be a logical progression of the idea.
The bill would keep corporations, unions and nonprofit groups from referring to a "clearly identified candidate" for a federal office in their advertising. For example, the National Rifle Association could run an ad that says voters should consider the right to bear arms when they cast their ballots, but it would be prohibited by law from saying which candidate it felt would, in the organization's view, best uphold that right. Americans would do well to ask themselves what is so dangerous about this type of ad. To a free and informed electorate, why should any type of information, even that which is considered a negative "attack" ad, be considered illegal? Should not the truth or falsity of a claim be proven in the marketplace of ideas, where truth and error can grapple without restraint? Is this not the underlying principle behind the free speech protection that the founders intended, above all, for political speech?
The bill's other main component, a ban on soft-money contributions to political parties, probably will pass muster under the current makeup of the Supreme Court. But we find recent arguments by the court's minority to be more compelling. Justice Clarence Thomas, for instance, has referred to contribution limits as "repression of political speech." How could it be anything other?
Regardless, McCain-Feingold won't keep money away from politics. It will just force politicians to do what they always have done — find new ways to get it. And, should the bill pass in its present form, we suspect once the Supreme Court gets hold of it, the remains will be more confusing and convoluted than ever.