Monday’s Supreme Court decision against the 2002 McCain-Feingold campaign finance law was a blow for the First Amendment. McCain-Feingold restricted the airing of “issue ads” by unions, businesses and other “special interest” groups immediately before an election if they mentioned a candidate by name.
Self-styled reformers argued that banning the ads was the only way to keep special interests from exerting undue influence in elections. Otherwise, said the reformers, the special interests would run roughshod over the average voter. As I see it, there are at least two problems with that argument.
First, who are these strange creatures called “special interests”? Who makes up the membership rolls of unions, corporate political action committees, pro-environment or pro-development associations, pro-life or pro-choice groups, pro- or anti-gun lobbies or any of the other “special interests”? Isn’t it millions of ordinary Americans like us?
Are ordinary Americans more likely to make their voices heard as individuals – for example, by writing letters to the editor of their local newspaper -- or by acting in concert with others who feel as they do on a particular issue? If individual voters choose to amplify their voices by acting together, isn’t this democracy in action rather than a conspiracy by the special interests?
Second, it is precisely during the period before an election that voters most want to know a candidate’s position on say, abortion -- or gun control or global warming. Issue ads are an effective way of making these positions known. As such, they provide information to the voters.
Yes, say the reformers. But don’t these ads often engage in “dirty” politics? That’s a fair point, I grant you. But politics is messy by its very nature. So is democracy. So is freedom of speech.
Attempting to make elections “fair” by limiting freedom of speech usually ends up limiting free speech without making any real improvement in the quality of our political campaigns.
Reformers, it seems, are always trying to take the politics out of politics. It can’t be done. And sometimes you can do real harm to the First Amendment by trying.