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http://washingtonpost.com/wp-dyn/articles/A40964-2001Apr4.html

McCain-Feingold's Fatal Flaws=20
By Michael Kelly
Thursday, April 5, 2001; Page A27=20


The good news about the McCain-Feingold campaign finance reform bill, =
which passed the Senate this week by a vote of 59 to 41, is that it is =
at its heart such an insane measure that it will never be the law of the =
land. The courts will gut McCain-Feingold from stem to stern, and hurrah =
for that.

The emotional appeal of McCain-Feingold is its ban of "soft money," the =
unregulated millions that pour into federal campaigns in an increasingly =
blatant, and entirely successful, effort to weasel around federal =
election laws governing direct contributions to candidates. This appeal =
is understandable. It was clear that the Clinton-Gore White House, in =
which access to the president and special consideration on issues of =
government policy were openly sold for soft money, had to represent a =
bottom; there had to be some sort of response to such an open display of =
corruption. McCain-Feingold is the response, and the temptation is to =
gaze upon it with a lover's eyes.

This, though, is not how the Supreme Court will regard the reeking mess =
that the Senate cleared off its desk this week. The court will -- any =
court would -- view McCain-Feingold for what it is: an insupportable, =
blatantly unconstitutional assault on the rights to speak and associate =
freely. The assault comes in the areas of the bill that have received =
less attention than the media-beloved soft-money ban.

Media descriptions of the bill tend to describe its speech-restricting =
provisions in a shorthand: under an amendment offered by Sen. Paul =
Wellstone, the bill would prohibit nonprofit groups, for-profit =
corporations, labor unions and trade associations from sponsoring =
broadcast advertisements that name and "promote candidates" within 30 =
days of a primary election or 60 days of a general election. In fact, =
the bill is much more sweeping in its restrictions.

If the courts find the above measure to be unconstitutional (which they =
will), McCain-Feingold will move to protect its speech restrictions =
under a contingency amendment offered by Sen. Arlen Specter. The Specter =
amendment is actually much worse than the Wellstone amendment. It =
forbids the covered groups from sponsoring -- at any time -- any =
broadcast advertisement that "promotes," "supports," "attacks" or =
"opposes" any "candidate," and that is "suggestive of no plausible =
meaning other than an exhortation to vote for or against a specific =
candidate." This appears to prohibit, say, a labor union, from paying =
for an ad that pointed out that Congressman X had voted against the =
increase in the minimum wage. Indeed, it appears to prohibit saying =
almost anything.

Then there is the great man's own contribution, the McCain amendment. =
This late entry rewrote Section 214 of the bill, which sought to curtail =
"coordination" between a candidate and independent groups sponsoring =
ads. The amendment rejects current law, which defines "coordination" as =
involving "collaboration or agreement," and instead defines it much more =
broadly as "any general understanding." Any group that was deemed to =
have "coordinated" under this impossibly broad definition would be =
barred from "any disbursement made . . . in connection with a =
candidate's election, regardless of whether the disbursement is for a =
communication that contains express advocacy."

All of this runs blatantly against the numerous and explicit rulings of =
the Supreme Court in this area. In the 1976 Buckley v. Valeo case, the =
court said: "So long as persons and groups eschew expenditures that in =
express terms advocate the election or defeat of a clearly identified =
candidate, they are free to spend as much as they want to promote the =
candidate and his views." In this ruling and in the 1986 FEC v. =
Massachusetts Citizens for Life, the court clearly defined "express =
advocacy" in the narrowest terms: "containing express words of advocacy =
of election or defeat, such as 'vote for,' 'elect' . . . "

The court has also ruled against the idea that a third party, such as =
the Federal Election Commission, should be empowered to determine =
whether a message is "understood" to be a political one.

There is more in McCain-Feingold that the courts will find pernicious. =
In the pungent analysis of James Bopp Jr., general counsel for the James =
Madison Center for Free Speech, "This bill shakes a fist at the First =
Amendment; if passed it is destined for a court-ordered funeral." Most =
of the senators who voted for it probably know this is true; that's one =
reason so many voted for it.

What's troubling is not that this attack on speech will stand; it is =
that it has been so widely and unthinkingly applauded as a good thing. =
This is bizarre. Do good-government liberals really want a country where =
labor unions and environmental groups and the NAACP are stifled? Do they =
really want a country where the laws protect the politicians from those =
who would tell embarrassing truths about them?



=A9 2001 The Washington Post Company


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<DIV><FONT size=3D2><A=20
href=3D"http://washingtonpost.com/wp-dyn/articles/A40964-2001Apr4.html">h=
ttp://washingtonpost.com/wp-dyn/articles/A40964-2001Apr4.html</A></FONT><=
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<DIV><FONT size=3D2></FONT>&nbsp;</DIV>
<DIV><STRONG><FONT size=3D4><FONT face=3DArial>McCain-Feingold's Fatal =
Flaws<!--plsfield:stop--></FONT></FONT></STRONG>=20
<P><FONT size=3D2><!--plsfield:byline--><I>By Michael =
Kelly</I><BR><!--plsfield:disp_date-->Thursday, April 5, 2001; Page A27 =
</FONT>
<P><!--plsfield:description--><NITF>
<P>The good news about the McCain-Feingold campaign finance reform bill, =
which=20
passed the Senate this week by a vote of 59 to 41, is that it is at its =
heart=20
such an insane measure that it will never be the law of the land. The =
courts=20
will gut McCain-Feingold from stem to stern, and hurrah for that.</P>
<P>The emotional appeal of McCain-Feingold is its ban of "soft money," =
the=20
unregulated millions that pour into federal campaigns in an increasingly =

blatant, and entirely successful, effort to weasel around federal =
election laws=20
governing direct contributions to candidates. This appeal is =
understandable. It=20
was clear that the Clinton-Gore White House, in which access to the =
president=20
and special consideration on issues of government policy were openly =
sold for=20
soft money, had to represent a bottom; there had to be some sort of =
response to=20
such an open display of corruption. McCain-Feingold is the response, and =
the=20
temptation is to gaze upon it with a lover's eyes.</P>
<P>This, though, is not how the Supreme Court will regard the reeking =
mess that=20
the Senate cleared off its desk this week. The court will -- any court =
would --=20
view McCain-Feingold for what it is: an insupportable, blatantly=20
unconstitutional assault on the rights to speak and associate freely. =
The=20
assault comes in the areas of the bill that have received less attention =
than=20
the media-beloved soft-money ban.</P>
<P>Media descriptions of the bill tend to describe its =
speech-restricting=20
provisions in a shorthand: under an amendment offered by Sen. Paul =
Wellstone,=20
the bill would prohibit nonprofit groups, for-profit corporations, labor =
unions=20
and trade associations from sponsoring broadcast advertisements that =
name and=20
"promote candidates" within 30 days of a primary election or 60 days of =
a=20
general election. In fact, the bill is much more sweeping in its=20
restrictions.</P>
<P>If the courts find the above measure to be unconstitutional (which =
they=20
will), McCain-Feingold will move to protect its speech restrictions =
under a=20
contingency amendment offered by Sen. Arlen Specter. The Specter =
amendment is=20
actually much worse than the Wellstone amendment. It forbids the covered =
groups=20
from sponsoring -- at any time -- any broadcast advertisement that =
"promotes,"=20
"supports," "attacks" or "opposes" any "candidate," and that is =
"suggestive of=20
no plausible meaning other than an exhortation to vote for or against a =
specific=20
candidate." This appears to prohibit, say, a labor union, from paying =
for an ad=20
that pointed out that Congressman X had voted against the increase in =
the=20
minimum wage. Indeed, it appears to prohibit saying almost anything.</P>
<P>Then there is the great man's own contribution, the McCain amendment. =
This=20
late entry rewrote Section 214 of the bill, which sought to curtail=20
"coordination" between a candidate and independent groups sponsoring =
ads. The=20
amendment rejects current law, which defines "coordination" as involving =

"collaboration or agreement," and instead defines it much more broadly =
as "any=20
general understanding." Any group that was deemed to have "coordinated" =
under=20
this impossibly broad definition would be barred from "any disbursement =
made . .=20
. in connection with a candidate's election, regardless of whether the=20
disbursement is for a communication that contains express advocacy."</P>
<P>All of this runs blatantly against the numerous and explicit rulings =
of the=20
Supreme Court in this area. In the 1976<I> Buckley v. Valeo</I> case, =
the court=20
said: "So long as persons and groups eschew expenditures that in express =
terms=20
advocate the election or defeat of a clearly identified candidate, they =
are free=20
to spend as much as they want to promote the candidate and his views." =
In this=20
ruling and in the 1986<I> FEC v. Massachusetts Citizens for Life</I>, =
the court=20
clearly defined "express advocacy" in the narrowest terms: "containing =
express=20
words of advocacy of election or defeat, such as 'vote for,' 'elect' . . =
. "</P>
<P>The court has also ruled against the idea that a third party, such as =
the=20
Federal Election Commission, should be empowered to determine whether a =
message=20
is "understood" to be a political one.</P>
<P>There is more in McCain-Feingold that the courts will find =
pernicious. In the=20
pungent analysis of James Bopp Jr., general counsel for the James =
Madison Center=20
for Free Speech, "This bill shakes a fist at the First Amendment; if =
passed it=20
is destined for a court-ordered funeral." Most of the senators who voted =
for it=20
probably know this is true; that's one reason so many voted for it.</P>
<P>What's troubling is not that this attack on speech will stand; it is =
that it=20
has been so widely and unthinkingly applauded as a good thing. This is =
bizarre.=20
Do good-government liberals really want a country where labor unions and =

environmental groups and the NAACP are stifled? Do they really want a =
country=20
where the laws protect the politicians from those who would tell =
embarrassing=20
truths about them?</P>
<P></P></NITF>
<P>
<CENTER>=A9 2001<!--plsfield:end--> The Washington Post Company</CENTER>
<CENTER>&nbsp;</CENTER></DIV></BODY></HTML>

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