A special three-member panel of federal judges ruled last week that major elements of the McCain-Feingold campaign finance law violate the1st Amendment right of free speech.
Specifically, the panel said Congress could not prohibit soft money contributions to political parties or election-time advertisements by interest groups that mention a federal candidate.
The panel was split and wrote its own complicated law on both these matters, however. Soft money, it said, cannot be used for party-paid advertisements promoting or attacking a specific candidate, nor can advertisements paid for by interest groups support or attack a specific candidate even implicitly.
The case will now go to the Supreme Court.
Human Events Assistant Editor David Freddoso asked House members if they regretted enacting a law that violated free speech. Remarkably, Rep. William Lacy Clay (D.-Mo.) admitted he regretted voting for the law and had done so only “under duress” from his party.
Last week, a federal court issued a 1,700 page opinion striking down key parts of the campaign finance law. Looking back, was this bill an ill-considered regulation of free speech?
Rep. Mike Capuano (D.-Mass.): Well, I always had my concerns about it relative to free speech, but at the same time I thought it was a good attempt to make things a little bit better. I had my constitutional concerns and I still do, but Im not the Supreme Court. Let the Supreme Court make those decisions. At the same time, just because you think you may be doing something that might violate the Constitution, if you think its the right thing to do, you try it. If the court knocks it down, well, you deal with it again, see if you can make it better within the constitutional parameters, whatever the court says. So I dont think its necessarily ill-conceived to try something. But its also immature to think that youre not pushing the line a bit. I was one of the ones who knew we were, but I thought it was worth trying‚?¶
Regarding the 30- and 60-day limit on advertising-
Capuano: Yeah, I never liked that provision, because I actually think free speech is an important thing. . . . It was always the one I thought was most likely to be found unconstitutional.
But you were willing to vote for it?-
Capuano: Yeah, you dont vote for one piece at a time. You vote for the whole package.
Last week, a federal court returned a 1,700-page decision striking key parts of the campaign finance reform law. In retrospect, do you think maybe this bill was an ill-considered regulation of free speech? Or would you stand by it?
Rep. William Lacy Clay (D.-Mo.): No, I wouldnt stand by it. Under duress, I voted for it, only because my party brought it to us in that manner. And you can probably recall all of the acrimony around it, with the party leadership wanting the Democrats to solidly be behind it. And it turned out to be a disaster. And it was an assault on 1st Amendment rights, and the court has rectified that. But well see what the Supreme Court does next.
What kind of pressure was being put on you at the time that made you vote for what you considered an assault on the Constitution?
Clay: It was that this was a party issue, that this was how we eliminate soft money, which is so bad for the Democrats, and the court said, hey, its constitutional to have soft money, thats the way people express their opinions in elections. And thats okay. Its more of a matter of a vote-getting strategy for the Democrats at the time. I took the vote, voted in favor of it, and lost my lunch afterwards. I just didnt feel good about it, but this is how the system is supposed to work: the courts will clear up those issues. And now its time to move on and get back to the electioneering in American politics.
[Youre saying,] I took an oath to uphold the Constitution. Even though I feel this is an assault on the Constitution, theres a lot of pressure on me, Im going to have to vote for it anyway. How do you sort out that dilemma of conscience?
Clay: Those are difficult decisions for me.
Do you regret it now, having done it at all?
Clay: Not really, because I think about my campaign pledge in my first election in 2000 for the House, where I pushed for campaign finance reform, although we didnt go far enough, because we didnt remove the influence of money in American elections. And that still remains the problem. As a matter of fact, we went in the wrong direction by increasing the limits from $1,000 to $2,000 per individual. So it was a bad bill-a poorly conceived bill, and a bad idea for American politics. And the courts have just restated that. Well see what the Supreme Court does. But Im pleased it worked out the way it did. And thats what our process, our system is about.
The campaign finance reform decision from last week-its 1,700 pages long-it struck some of the bills important parts. In retrospect, was this bill an attack on 1st Amendment rights, or would you stand by the bill and the vote you cast on it?
Rep. Danny Davis (D.-Il.): Well, I would stand by the vote that I cast, because I think the intent was to try and reduce some of the big money influence on public policy decision-making. Now I agree that it is difficult to legislate certain kinds of behavior. . . .I think there were those who had reservations about the 1st Amendment being usurped all the time-I certainly had some concerns, and reservations, and possibilities. But I guess the difference between politics, in some sense, and government, is government is what you get and politics is what you want. And of course, the courts have the responsibility to uphold the law, so I wouldnt be surprised, when the deal went down, if the courts decision didnt hold.
The campaign finance reform decision from last week-its 1,700 pages long-it struck down some important parts of the law. In retrospect, was this bill an attack on 1st Amendment rights?
Rep. Jeff Flake (R.-Ariz. ): Oh, you bet. And lets hope the Supreme Court finishes the job and kills the whole thing.
In retrospect, do you have any second thoughts-maybe that this bill [which you sponsored] was an attack on free speech?
Rep. Marty Meehan (D.-Mass.): Well, the decision was actually a very good decision. It said that the ban on federal candidates raising soft money is constitutional, and that the political parties spending soft money on political advertisements-sham issue ads-is constitutional as well. So thats the core of our bill.
But the 30- and 60-day limit-
Meehan: Well, they threw that out, but they substituted that with another standard, that if its an ad thats meant to influence-to elect or defeat a candidate, then it could be regulated. Thats better than many observers thought we would do . . . as long as its a group that prevents using corporate money and soft money for political advertising.
But wasnt that the law before-no soft money for candidates, and no-
Meehan: No, the law now is, as long as the ad doesnt say “vote for” or “vote against” someone [then its permissible]. So this was a very good opinion. . . . Its mixed, but its more positive than negative.
Was this bill an ill-considered regulation of free speech?
Rep. Bill Pascrell (D.-N.J.): Absolutely not. The Congress can be divided into two camps-one camp thinks theres too much money being spent on campaigns, and the other camp thinks theres never enough money in any particular campaign. And Im very proud to belong to the first group. I think this is a mockery. I think that what weve done is dragged the very character of this House and Senate-I dont know how far below this it can go. . . .Im very proud of my vote, and I would do it all over again and make it stronger.