Today McCain-Feingold’s 60-day window on electioneering communications opens. Perhaps a better metaphor would be that the window slams shut.
An electioneering communication is a broadcast ad that mentions a candidate for federal office. Until election day you cannot sponsor an electioneering communication unless you meet certain conditions specified by federal election law.
Practically, this part of McCain-Feingold means business corporations, labor unions, many interest groups (which are incorporated), and groups that receive money from corporations or unions may not fund ads mentioning candidates for federal office. The same groups also may not sponsor ads urging citizens to contact their member of Congress about an issue if that member is running for re-election.
Defenders of McCain-Feingold (and a majority of the U.S. Supreme Court) have argued that the electioneering communication rules do not prohibit political speech. After all, these groups can simply form a political action committee or use other available alternatives to sponsor the advertising.
Maybe, maybe not. In 2000, a donor gave the NAACP a multi-million dollar gift that was used to fund ads criticizing a candidate for federal office, George W. Bush. Under McCain-Feingold, the NAACP would have had to raise that multi-million dollar donation under federal law including disclosure requirements and contribution limits. Raising money under those constraints is much harder than receiving a single gift from one donor. Given those difficulties, the NAACP might well have not raised as much money with a PAC as they did in 2000 from that one contributor. Of course, funds that are not raised cannot be spent on political speech.
Jim Bopp, Jr., a leading First Amendment lawyer, has recently noted other ways McCain-Feingold discourages speech:
“As one who represents advocacy groups, I have seen first hand that the burdens and undesirability of each available alternative [for example, PACs] is such that the vast majority of advocacy groups have abandoned issue advertising during the blackout periods… One of the key considerations is that to avail oneself of one of these alternatives requires (1) hiring expert legal assistance to design and implement such strategies and (2) exposing your organization to heightened scrutiny by the FEC, press, and offended public officials. As a result, only the wealthiest, most sophisticated, and most insistent have assumed these burdens and risks. The vast majority of advocacy groups have just dropped out – to the everlasting joy of incumbent politicians who face less scrutiny from the general public for what they do to us and for us in office. A prohibition indeed!”
I am reminded of Frederic Bastiat’s essay on “The Seen and the Unseen.” Americans see the political world after McCain-Feingold. Electoral ads continue to run, and no one has been sentenced to a re-education camp. They conclude that nothing all that bad has happened to free speech.
Americans do not see the political speech that would have existed if McCain-Feingold had not been enacted. They thus discount the possibility that the speech that may not exist in the future may be their own and that blackout periods now may portend a longer night to come.