The Bipartisan Campaign Reform Act of 2002 (better known as the McCain–Feingold Act) prevented corporations and unions from funding any advertisements mentioning a candidate, or “electioneering communications,” within 30 days prior to a primary election or 60 days before a general election. The law prevented any incorporated entity, including unions, corporations, and non-profit corporations, from using their funds to advocate for any issue, if any federal candidate’s name was included, in broadcast advertisements. For example, within 60 days of a general election, a right to life organization could not air an anti-abortion ad if the name of any federal candidate were included. An environmental advocacy organization would likewise be prohibited from broadcasting an advertisement in favor of clean-air standards if they chose to name any candidate for elected office.
From the start, this law was attacked by citizens as an unconstitutional infringement of the First Amendment of the Constitution, which protects freedom of speech and the right of the people to petition the government for redress of grievances. In a number of cases, beginning in 2007, the Supreme Court agreed with the unconstitutional nature of the McCain-Feingold Act. Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), Davis v. Federal Election Commission (2008), and, finally, Citizens United v. Federal Election Commission (2010) Supreme Court decisions effectively gutted the key provisions of the McCain-Feingold Act, finding them an unconstitutional restraint on the ability of organizations to engage in political speech.
Since these decisions were announced, particularly the Citizens United v. Federal Election Commissions decision, many, particularly the so-called “progressives,” have been apoplectic. They argue that allowing organizations of individuals the right to spend their own money advocating for or against political issues (and particularly, naming candidates’ stands on those issues) corrupts the political process by allowing wealthy organizations to “buy” governmental influence.
In this instance, the Supreme Court got it right. (It may even be argued the Supreme Court didn’t go far enough in its decision). The First Amendment clearly states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Italics mine). There is no mention in the Constitution of limiting these rights to specific time periods or of restricting the types of communications that constitute freedom of speech. The First Amendment has no restriction on who may exercise these rights or on how much an organization can spend on expressing their views. The Constitution is clear that “Congress shall make no law” restricting these rights. McCain-Feingold served to restrict First Amendment rights, and was rightfully ruled unconstitutional.
Recognizing the futility of trying to limit this type of speech through legislative means, “progressives” are trying to amend the Constitution to overturn the Citizens United decision. Most recently, the New Jersey Assembly passed a bill calling for a Constitutional Convention to consider amendments to limit the “corrupting influence of excessive spending by outside interests.” What the “progressives” don’t outright admit is that they are less concerned about the “corrupting influence of excessive spending” than they are of ensuring that the corruption is limited to advocating positions with which they agree.
There are many ways to influence governmental policy and spending money to air issue advocacy advertisements is just one of them. Virtually every organization employs lobbyists who help craft legislation and garner support for it. Organizations recruit and support “grass roots” volunteers to solicit support for favored candidates and legislation. Political parties collect donations and dole them out to selected candidates. Citizens can, and do (particularly in the age of the Internet), circulate petitions advocating for or against specific issues. Ordinary citizens are free to write to their legislators or publish their own views using the media of their choice. Why aren’t the “progressives” up in arms with these attempts to “corrupt” the political process? The issues the “progressives” have with independent expenditures of private money to influence legislation has less to do with corruption and more to do with control. Organizations using their own money to advocate for their favored political positions cannot be influenced or restrained by specific political parties. Political parties, or organizations beholden to them, are the chief organizers of “grass roots” campaigns. They can easily control the influence and use of lobbyists through legislation. But they have absolutely no control as to what a specific organization can say through independent political advertising. Anyone, not just organizations favored by incumbent politicians, can craft, disseminate, and shape political issues.
So-called “progressives” are worried that moneyed interests, through their ability to fund issue advertising, will have an inordinate influence due to their wealth. Besides underestimating the ability of the American public to engage in their own critical thinking, this argument ignores the fact that allowing private organizations to air their opinions is far more democratic than limiting messages to time frames and content approved by the government. In addition, the value of individual wealth is greatly overestimated. Organizations, particularly labor unions and non-profit corporations could pool small amounts of money from large numbers of donors to advocate for their favorite political positions. Issue advocacy advertising is not the exclusive domain of a few wealthy individuals or corporations – it is now available to any group able to organize like-minded individuals and gain their financial support.
“Progressive” legislators and their supporters say they are worried that the ability of independent organizations to spend their money on issue advocacy will “corrupt” the political process. By using this argument, the legislators are admitting they can easily be corrupted and will be unduly influenced by messages aired by independent entities. In fact, legislators are already corrupted by messages emanating from their own political parties. In every legislature, there is a party position called a “whip,” whose job it is to instill legislative discipline on its own party members. The true issue is not one of corruption or undue influence – the “progressives” are really worried about who dictates the influence. Because they, or their political organizations, have no control over the messages disseminated by independent organizations, the “progressives” lose their monopoly on shaping the types and content of messages received by the American public. This is the true concern for those fighting to overturn the Citizens United decision.
If the “progressives” were truly concerned that those airing issue advocacy ads could “buy” government influence, they would shrink the size and scope of government so that there is nothing worth buying. As long as the government insists of extending its tentacles into every aspect of human and corporate behavior, there will be those trying to exercise their influence so that government policies benefit their own specific interests. Attempting to outlaw specific means to influence policy (particularly when allowing other techniques) does nothing to solve the perceived problem of groups attempting to purchase governmental influence. There will always be those who attempt to corrupt the system by asserting undue influence as long as the government wields the power to control individual and business decisions. There will always be legislators, and other government officials, willing to sell their offices to the highest bidder. The solution to this problem is not to ban the constitutionally-protected right to free speech and to petition the government. The solution is to remove the temptation to influence government by reducing the areas in which influence can be peddled.
Sadly, this is anathema to most “progressives.” “Progressives” are dedicated to using government to advance their agenda of controlling the populace. Reducing the scope of government, in addition to allowing independent issue advocacy, is an assault on their monopoly of control.