Together with Russ Feingold (D‐Wis.) and new co‐sponsor Thad Cochran (R‐Miss.), Sen. John McCain (R‐Ariz.) has trumpeted the bill’s prohibition of soft‐dollar contributions from corporations, labor unions and wealthy individuals. But an embargo on much of the soft money — for example, amounts given for get‐out‐the‐vote campaigns and issue‐related messages — may not survive constitutional scrutiny, especially by a Supreme Court that has warned Congress to stop toying with the First Amendment.
The most insidious provision of the bill bans a new category of political expression by corporations and unions called “electioneering communications” — radio or TV ads that refer to a clearly identified candidate and appear within 60 days of an election. Never mind that the Supreme Court in Buckley v. Valeo (1976) said “As 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.”
According to McCain‐Feingold, however, payment for electioneering communications somehow transforms issue advocacy into taboo speech. In the process, Congress will have reduced the First Amendment to scrap.
Advocates will be free to promote a candidate and his views with one “narrow” exception: They can’t mention the name of the candidate whose views they would promote.
The nasty little secret is that McCain‐Feingold does nothing to rein in the huge sums of money extracted without consent from union members’ paychecks. Much of that money flows into union political action committees (PACs) that are not subject to any limits in two key areas.
PACs are not bound by the limits on either independent expenditures — that is, uncoordinated spending that expressly advocates the election or defeat of a clearly identified candidate — or electioneering communications. That’s OK, say McCain‐Feingold supporters, because neither unions nor corporations are permitted to contribute to PACs, except to pay for administrative expenses.
But there’s an enormous difference between the treatment of corporate and union PACs. A corporate PAC may solicit voluntary contributions from executives and shareholders, but not from most other employees. Union PACs have greater flexibility because they can expropriate a portion of their members’ dues for political purposes.
In Communications Workers of America v. Beck (1989), the Supreme Court held that the dues of nonmembers paid under an agency shop agreement cannot be used for purposes other than collective bargaining unless the nonmember consents. McCain‐Feingold codifies the Beck decision, but deals only with nonmembers.
Unless consent is required from members and nonmembers alike, unions and therefore Democrats are immensely advantaged. After the court ruled in his favor, Harry Beck reclaimed 79 percent of his dues. And recent data suggest that roughly 90 percent of the money goes to Democrats, although members split their votes 60–40.
The reform agenda is just pushing on a balloon. Clamp tight controls on hard‐dollar contributions and watch soft dollars mushroom. Outlaw soft dollars and the money flows into independent expenditures. Restrict independent expenditures and issue advocacy takes over. Now McCain‐Feingold proposes to label large chunks of issue advocacy as “electioneering communications” that will be banned. Can there be any doubt that money seeking a means of expression will find a new way around these absurd regulations?