More than a month has passed since the Supreme Court handed down its decision narrowing First Amendment protections for underwriting free speech. Because the initial reactions of fear and loathing have largely passed, now is the time to think about what should be done next.
Certainly, the people who gave us the McCain‐Feingold campaign finance laws have their agenda firmly set: Impose more legislative restrictions on money in politics and elections. To resist their plans, defenders of free speech need to think about how America got to the point that McCain‐Feingold could be enacted and subsequently blessed by the Supreme Court.
Start with Congress. Too many Republicans and conservatives who had long professed a principled concern for freedom of speech in campaign finance in the end preferred the political benefits of banning soft money. It’s not hard to see why. The Democrats turned out to be pretty skilled at raising soft money; once soft money ended, the Republicans big hard‐money advantage counted for more, and the Democrats started trying to undermine McCain‐Feingold.
From a partisan perspective, the soft money ban has hardly been a disaster for the Republicans. Similarly, the presidential politics of McCain‐Feingold are pretty clear. President Bush is probably the best fundraiser ever of hard money. The soft money ban did him no harm, but it did take away a potential primary challenge from Sen. John McCain and thus a possible threat to his re‐election.
Like the Medicare drug benefit and the education bill, the president’s signature on McCain‐Feingold also took away a Democratic issue for 2004.
If Republicans are going to fight against future restrictions on campaign finance, they must decide they are truly against them as a matter of principle and yes, of long‐term partisan interest.
Listening to Republican Hill staffers in December, I have concluded that many Republicans in Congress were sure that McCain‐Feingold was unconstitutional, but they voted for it anyway, assuming that the president or the Supreme Court would come to the defense of free speech. Wrong.
But the McConnell v. FEC disaster can’t be blamed entirely on political misjudgments. Ironically, enough conservatives did not spend enough money in their struggle to be free to spend money on elections. Consequently, the struggle for public opinion on this issue was one‐sided.
The groups behind McCain‐Feingold invested more than $70 million in getting their bill through Congress and the Court. Sympathetic foundations and wealthy individuals lavished money on lobbying groups, Washington think tanks and sympathetic academics to advance the case for restrictions.
I recall once talking to a promising young scholar who had just attended his first Washington conference on campaign finance. He remarked that the Pew Foundation “had bought up all the academic talent in town” on campaign finance. Indeed, they had. The names of the people supported by Pew and other liberal foundations can now be found in the majority opinion in McConnell v. FEC. Their investment in lobbying and academic research paid off handsomely. They convinced five Supreme Court justices — three of whom were appointed by Republicans — that making a certain kind of campaign contribution is a corruption of politics, not a constitutional right.
Only a handful of think tank researchers write regularly against campaign finance restrictions. No groups are dedicated full‐time to fighting campaign finance battles and keeping the news media updated on the case for liberty.
Until last week, conservatives seemed to believe that a Republican majority in Congress, along with a crew of talented election‐law specialists, could stave off campaign finance restrictions. That strategy failed. A new one is needed for the battles to come.
The groups that want to further restrict campaign finance still have a lot of money at their disposal, no shortage of political skill, and a limitless desire to limit the rights of Americans to spend money on politics. If conservatives expect to stop future restrictions, they have to fight this battle all the time and not just in the courts and Congress. Unless conservatives invest in the struggle to defend the First Amendment, McCain‐Feingold will be only the first of many laws that punish criticism of government.