Friday, May 8, 2009

McCain-Feingold vs Us

The Supreme Court is currently reviewing yet another appeal of the McCain-Feingold Bipartisan Campaign Reform Act, which is a law passed in 2002 that limits the way money can be spent on political advocacy. The case in question involves a movie made by an admittedly partisan group, Citizens United, which runs 90 minutes or so and is decidedly anti-Clinton. In fact, by all accounts, (I have not seen it), it is not much more than a 90 minute campaign ad masquerading as a movie. And the problem with that is that the Federal Election Commission (FEC) claims that, as a corporation, Citizens United is prohibited by McCain-Feingold from spending money from its treasury on candidate advocacy. Nina Totenberg at NPR explains:

"That means the producing organization must publicly disclose who paid for the movie, and any broadcast ad must have a tag line disclosing the sponsoring organization and disclaiming any connections to any candidate's campaign. In addition, the court said, the movie could not be broadcast 30 days before a primary election."

I hope the Supreme Court finally uses this case to strike down McCain-Feingold. This is not because I agree or disagree with the content of this particular movie. But what McCain-Feingold tries to do is to differentiate between different modes of political speech, all of which is protected by the first amendment.

It is important to note that McCain-Feingold does not actually ban this type of speech, but it does place limitations on it. In this case, the most onerous is the one prohibiting corporations (yes, this includes your local homeless shelter) from paying for political speech which is made within 30 days of an election, if it mentions by name a candidate who is in that election.

I would point out that the most appropriate time for this kind of speech is precisely within 30 days of an election, as that is when people are most focussed on it.

I would also say that, for all practical purposes, this allows restrictions on books, movies, music, breakfast speakers, signs, and pretty much anything else in the wide universe of communicable ideas which the Court has wisely, and for many years, considered free speech.

Furthermore, this law is extremely susceptible to political influence. The prosecution of this law is left up to the FEC; in other words, the government will decide whether your speech will qualify as political advocacy or not. There is no possible way that the FEC can investigate everything might be covered by the law, and so they will have to pick and choose whose speech they will try to stifle. And in the course of doing so, they will also have to decide what they believe is political speech. Is Michael Moore's Fahrenheit 911 advocacy? Is a speaker at a historical society's breakfast meeting who mentions Bush in a passing comment practicing advocacy? Under the law, one would have to conclude that the answer is yes.

So we have government deciding what is advocacy, and what is not, which is a purely subjective endeavor from the start. And then we have government deciding what it will attempt to stop and what it will ignore, also a subjective enterprise. And this whole circus act is supposed to give us fairer and more free elections.

How did we get here? There has been a wringing of hands over the amount of money spent in national and state campaigns. The perception among the general public has been that the money is a corrupting influence. This perception has been encouraged by incumbents of both parties. But missing in this debate is the fact that incumbents have advantages that outsiders can only dream of. They have the political connections and favors owed that only incumbents can have. The media, in the course of doing their job, gives them unparalleled coverage, which they naturally use to promote their point of view, and of their candidacy. On a recent walk through San Francisco, I saw a sign proclaiming how Mayor Gavin Newsom was responsible for building a city park. What challenger can make that claim?

And the money, while at first glance seeming obscene, really isn't that much. According to the Center For Responsive Politics, total spending by presidential candidates was around $1.3 billion dollars, or roughly double that of the 2004 election. Seem high?

Consider that the fleet of helicopters being built to support the president is projected to cost $13 billion, or roughly 10 times the total expenditures by all candidates.

Consider also that $1.3 billion dollars is about $5.60 per eligible voter. $5.60 for each voter in arguably the most important presidential campaign in our lifetime.

This money is spent to educate voters on which candidate to vote for. It is not a necessary evil; rather, it is essential to the functioning of democracy. You could say, and I would agree, that some of this information is misleading, and much of it caters to the lowest common denominator, but to the extent that it is and does, it is the fault of the voter who has neither the time nor the inclination to think for themselves. But this also is the nature of democracy; it's ugly and imperfect at times, but it seems to be the best system we've got.

The lifeblood of democracy is ideas, and McCain-Feingold seeks to limit their propagation. At best it is a misguided attempt to make the system fair, at worst it is a cynical and Machiavellian attempt to game it for the benefit of incumbents. The Supreme Court should strike it down.

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