The Case Against McCain-Feingold

Mit

ch McConnell isn't waiting for the House. The Kentucky Republican who's been playing Darth Vader to John McCain's Luke Skywalker hosted a strategy session Wednesday for the bill's future legal enemies — a disparate group that included, according to McConnell, the American Civil Liberties Union, the Christian Coalition, the Business-Industry Political Action Committee, the U.S. Chamber of Commerce and the National Right to Life Committee.

McConnell, who plans to serve as lead plaintiff in litigation against it, calls McCain-Feingold a "target-rich environment for challenge in court," and he doesn't just mean the amendments. The bill's heart and soul — the ban on "soft money" — may be vulnerable too.

Prof. Joel Gora currently teaches Civil Liberties and Constitutional Law at Brooklyn Law School and was one of the plaintiffs' lawyers in the campaign-finance landmark case of Buckley v. Valeo. He is working with the ACLU on campaign finance reform, and expects McCain-Feingold to be ruled unconstitutional by the courts. TIME.com asked him why.

TIME.com Let's start with the fattest target: The Snowe-Jeffords amendment, which would bar independent advocacy groups from broadcast advertising 30 days before an primary and 60 days before a national election. What are the legal problems with this?

JG: The courts have ruled again and again that the only thing that can be regulated is express advocacy — basically, "Vote for Smith." That's considered valid because it's direct involvement in a campaign in an overt and explicit way. But anything other than that is not subject to any governmental regulation. The courts have deemed that right — to comment on or criticize the government — to be too precious in our democracy.

McCain makes the point that the "issue ads" are just thinly disguised expressed advocacy.

It's so clear that the motive of so many of those members is to protect themselves from criticism by shutting those ads down. Mentioning a candidate and expressly advocating his victory or defeat are two different things. To bar ads from criticizing the McCain-Feingold bill, for instance, is just too restrictive of political speech that's protected by the First Amendment. To extend the current restrictions any further would require the court to dramatically change its First Amendment doctrine. And I don't see how they'd be willing to do that.

How about the "soft money" ban?

JG: That's not as clearly covered by legal precedent, but it's really the same logic as the issue advocacy groups. By definition, "soft money" doesn't go directly to specific candidates, but goes to the parties. Are we saying that it's OK for issue advocacy groups to accept donations that allow them to increase their ability to advocate, but that it's not OK for parties to do the same thing?

If you ban soft money donations to parties, you'll basically have all these other groups trashing whichever party they oppose, and the party would be overmatched in terms of fighting back. Parties have First Amendment rights too — the courts have ruled that. And taking away soft money puts them at a disadvantage.

Yes, but parties still only have to compete against one another, so isn't their strength relative? What's so horrible about an election dominated by issues and issue advocacy? A Democrat or Republican is still going to get elected in the end.

The courts recognize that parties provide a valuable function in a democracy. What the parties do that issue-advocacy groups can't do, by definition, is have a big tent, under which issues are compromised and moderated. That way, the interests of the minority in a given election aren't completely abandoned.

What we need — and what I think the courts will be interested in preserving — is a balance of power between parties, candidates, the press, and issue-advocacy groups.

The press?

JG: Well, besides the fact that news organizations are in their own way powerful issue-advocacy groups, look at Jerome Kohlberg, who can write a $100,000 check to the New York Times to take out full-page ads that say that other people shouldn't be able to write $100,000 checks to political parties. That seems ridiculous to me, not to mention unfair.

You need a balance. And if independent advocacy groups are going to be protected under the First Amendment, then people donating to parties have to have those rights too.

One more thing. In 1976's Buckley v. Valeo, the case you worked on, the court upheld Congress' ability to limit donations, in order to prevent corruption or the appearance of corruption. How does that line get drawn?

The court ruled that Congress could set those limits, at which point the court could determine whether those limits were overly restrictive on political speech. I think limits are the wrong approach, and since these limits don't apply, and rightly so, to other forces in an election, like issue groups and the press, they shouldn't apply to candidates or parties either. That's unfair and unequal, and I hope the courts would ultimately see it the same way.