McCain‐​Feingold Good for Unions, Bad for Everyone Else

This essay originally appeared in the Detroit News on March 20, 2001.
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The umpteenth version of McCain‐​Feingold has conned some Republicans intobelieving corporations and unions are treated even‐​handedly. But unless theBush administration opposes this awful piece of legislation, Republicanscould pay the price in 2002.

Together with Russ Feingold (D‑Wis.) and new co‐​sponsor Thad Cochran(R‑Miss.), Sen. John McCain (R‑Ariz.) has trumpeted the bill’s prohibitionof soft‐​dollar contributions from corporations, labor unions and wealthyindividuals. But an embargo on much of the soft money — for example, amountsgiven for get‐​out‐​the‐​vote campaigns and issue‐​related messages — may notsurvive constitutional scrutiny, especially by a Supreme Court that haswarned Congress to stop toying with the First Amendment.

The most insidious provision of the bill bans a new category ofpolitical expression by corporations and unions called “electioneeringcommunications” — radio or TV ads that refer to a clearly identifiedcandidate and appear within 60 days of an election. Never mind that theSupreme Court in Buckley v. Valeo (1976) said “As long as persons and groupseschew expenditures that in express terms advocate the election or defeat ofa clearly identified candidate, they are free to spend as much as they wantto 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 viewsthey would promote.

The nasty little secret is that McCain‐​Feingold does nothing to rein inthe 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 norcorporations are permitted to contribute to PACs, except to pay foradministrative expenses.

But there’s an enormous difference between the treatment of corporateand union PACs. A corporate PAC may solicit voluntary contributions fromexecutives and shareholders, but not from most other employees. Union PACshave greater flexibility because they can expropriate a portion of theirmembers’ dues for political purposes.

In Communications Workers of America v. Beck (1989), the Supreme Courtheld that the dues of nonmembers paid under an agency shop agreement cannotbe used for purposes other than collective bargaining unless the nonmemberconsents. McCain‐​Feingold codifies the Beck decision, but deals only withnonmembers.

Unless consent is required from members and nonmembers alike, unions andtherefore Democrats are immensely advantaged. After the court ruled in hisfavor, Harry Beck reclaimed 79 percent of his dues. And recent data suggestthat roughly 90 percent of the money goes to Democrats, although memberssplit their votes 60 – 40.

The reform agenda is just pushing on a balloon. Clamp tight controls onhard‐​dollar contributions and watch soft dollars mushroom. Outlaw softdollars and the money flows into independent expenditures. Restrictindependent expenditures and issue advocacy takes over. Now McCain‐​Feingoldproposes to label large chunks of issue advocacy as “electioneeringcommunications” that will be banned. Can there be any doubt that moneyseeking a means of expression will find a new way around these absurdregulations?