There are a few tatters left to it, but basically after what the Supreme Court did to the McCain-Feingold campaign finance law, there isn’t much that remains. That it has limped along for almost five years is remarkable considering it was a political thalidomide baby, deformed and weird-looking from birth.
Even monsters have those who love them. After the Supreme Court recently knocked out a central provision of McCain-Feingold a New York Times editorial rended a garment or two over the decision that permits anybody or anything to buy as many “issue ads” to influence elections as it has money to pay for. “The decision contained a lot of pious language about protecting free speech,” the Times moaned, “but magnifying the voice of wealthy corporations and unions over the voice of candidates and private citizens is hardly a free speech victory.”
The case on which the court decided, however, was not one involving “wealthy corporations and unions” with the emphasis on wealthy. (Never mind that there are damn few wealthy unions in the United States.)
David Broder, the esteemed political writer for The Washington Post, summarized the case: “The 5 to 4 decision in Wisconsin Right to Life v. the Federal Election Commission, written by Chief Justice John Roberts, involved an ad that Wisconsin Right to Life wanted to run in the fall of 2004, urging people to contact two Democratic senators, Herb Kohl and Russ Feingold, and ask them to oppose Senate filibusters of President Bush’s judicial nominees.
“Because Feingold was up for reelection in 2004, and the campaign finance law he had co-sponsored with Sen. John McCain forbids the use of corporate or union funds for ‘electioneering communications’ using a candidate’s name during a 30-day period before the primary and a 60-day period before the general election, Wisconsin Right to Life had to drop its ad campaign.”
Mr. Broder then adds that, “The ban was imposed despite the fact that the ad made no reference to the coming election or Feingold’s candidacy. It stretched the definition of ‘electioneering’ to the breaking point and applied it to a nonprofit advocacy group that happened to have incorporated itself.” The net that was designed to catch the sharks and whales to prevent them from obliterating competition in elections caught, if not a guppy, then a very small fish. Obviously, a law that gags Wisconsin Right to Life, which is hardly in the same category as the big pharmaceuticals, has some serious free speech flaws.
You could argue that depriving organizations such as Wisconsin Right to Life or Wisconsin Free Choice, if there is such a group, of the electronic podium during election campaigns is worth the price. Nevertheless, when the speech of small groups is abrogated to control the free speech of the large, you are on the way down a road you do not want to travel.
The getting of money is threatening to become more important than public opinion polling. The political world and the lay world outside it have become fixated on the campaign finance reports issued every three months. Whoever has the most money wins. People are reconciled to the idea. Whether we have become a nation of fatalists, the will to resist the right and the power of money to decide elections seems to grow weaker and more intermittent. People may hate the idea, but their pitchforks are rusting in the barn.
The contrary argument has it that the Internet can cancel out the big money, and Barack Obama is used as this cycle’s example. Last time around it was Howard Dean, until the old pros squashed the Vermont doctor so fast, so hard and so loud you could hear the cracking of his carapace all the way from Des Moines to Jersey City.