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Tuesday, September 21, 2004
McCain-Feingold Strikes Again

By Dr. Steven Taylor @ 5:50 am

Confusion continues to arise over the application of McCain-Feingold (aka, BCRA). Despite misguided ideals about “taking the money out of politics” and such, all this law has done is create a morass of incomprehensible rules that neither take money out of politics nor improve the quality of communication during the campaign process.

The latest example: U.S. Judge Orders Election Agency to Tighten Rules. This ruling has now created a great deal of confusion going forward in this campaign cycle:

The decision affects 15 highly technical regulations governing campaign activity that, though not widely known outside the world of political operatives, serve as important guideposts for how to finance campaigns legally.


In the wake of the judge’s ruling, many experts in campaign finance are now asking which set of rules apply to candidates and others now campaigning. Some argue that the regulations passed by the commission should remain intact, at least for this year’s race and until new ones are created.

They note that the judge’s ruling did not expressly prevent the commission from enforcing these regulations, even as it asked the commission to recast them.

“The alternative is that there are no regulations, and that can’t be the right answer,” said Ellen Weintraub, a Democrat who is the commission’s vice chairwoman. “That would leave us in chaos. The worst possible result is chaos six weeks before an election.”

Mr. Toner, the Republican commissioner, said that “if history is any guide, when the law is uncertain, there is more potential for people to push the envelope.”

So, we have a law that creates the need for highly complex rules-which typically means a greater capacity to find loopholes-all for a what should be a simple First Amendment right: the ability to speak about politics in public.

Further, if anyone believes that once a new set of rules is put in place by the FEC that everything will be “fixed” then I have some ocean front property in Arizona I’d like to sell you,

As this process continues I remained baffled than anyone thinks that any attempt to regualte campaign speech will be successful. Even if one thinks that there are ills in the system, it seems clear that the “cure” simply makes them worse.

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  1. Ok Professor, test time :) …. I’ve watched you rail against mccain-feingold for a long time. Your position as I see it is that you’re opposed to any kind of campaign speech regulation. The argument you’ve used is basically that the money will flow anyway. Well, that’s not good enough for me.

    In this country, free speech isn’t entirely free. There are constitutional limitations on free speech. Obviously the “fire” in a theatre example is one. But hasn’t our judicial/legislative system stated very clearly that there are some forms of public speech that aren’t acceptable?

    For example, in radio, isn’t the practice of payola banned by legislation and supported by the courts? Yes.

    Aren’t movies, radio & television governed by regulations regarding what can be said and shown? ie - swear words and many other things? Yes.

    Aren’t there limitations on where speech can occur? Yes. Look at abortion clinic “buffer zones”

    Further, bribery is illegal in this country.

    Now lets put bribery and regulated free speech together.

    Would it be harmful to the american public if a candidate received all his campaign financing from one person? No. But what if the candidate knew that he would receive no funds in the next election from that person if he didn’t enact legislation favorable to that person. Because this single donor donated far more than any other source available to the candidate, his prospects for winning the next election would be minimal. The candidate doesn’t want to risk this.

    Is this bribery? Yes. The donor expects favors in exchange for his money. Is this harmful to the public interest? Yes. The candidate will not have the public good in mind when he does his job. He will not be representing his constituents.

    This is a simple example, but you see how there is already a precidence in the american system for regulated campaign financing. So campaign finance in some form is perfectly acceptable. You can disagree on the implementation of mccain-feingold, but I’ll bet you can’t argue with the basic need of some sort of regulation.

    Ok professor - defend your position if you can. :)

    Comment by Eric — Tuesday, September 21, 2004 @ 11:12 am

  2. First, just saying that some speech is regulated, therefore regulating campaign speech is fine does not follow logically. In what way is yelling “fire” in a crowded theater in any way similar to advocating for the election or defeat of a candidate? The right to speak freely about political matter is fundamental to a democracy, while cursing on a TV show isn’t. You aren’t comparing like issues.

    Second, I reject the premise that someone giving money to a candidate is bribery. For one thing, a donor doesn’t go looking for someone whose position they can buy, they look for someone who already thinks as they do, then tries to help them get elected. Further, given that candidates need voters more than they need donors, you are incorrect to state that politicians would cease to represent their constituents—because if they cross their constituents, they will vote someone else into office.

    I would further note, that from an efficiency standpoint, a donor is much better off simply finding a candidate with whom they agree, rather than trying to bribe someone into submission.

    Third, just stating that regulation is good because it might do something positive is hardly a compelling argument for such rules. It more like wishful thinking that either argument or policy-making.

    Fourth, I do favor some regulation: full and instant disclosure of all donations to all groups and candidates. Let the people decide whether a given donation smells or not. This is a democracy, is it not? I could even live with (though see no need for) limitations on donations, although they ought to be higher than $2000. But why it wouldn’t be better to have the money under the control of the candidate, who is responsible to the voter, rathe than under the control of a 527-like group is beyond me. And why, in the US, where free association is part of the First Amendment, groups can’t coordinate is beyond me as well. What precise harm are we supposedly avoiding here?

    Fifth, having the most money doesn’t mean you automatically win: asks Presidents Perot and Forbes. For that matter, for a while Howard Dean had a huge money advantage over Kerry in the Democratic primaries. Hence, part of your premise is flawed.

    Sixth, I would issue a challenge to you: what good has McCain-Feingold done? Has it removed money from politics? Has it increased accountability (think 527s)? Has it created better political speech in any way? I would state that CFR in general fits the axiom that “the road to hell is paved with good intentions”—as the law is well intentioned, but I defy you to tell me what good it has done. Forget the hypothetical, tell how such regulations actually accomplish their goals, and more importantly, prove that the damage done to free speech is worth what you get in return.

    Seventh, I would note as an empircal fact that every year the amount of money spent on political campaigns has increased. FECA didn’t stop that, nor did BCRA. And, quite honesltly, if we are going to spend billions as a society to try to get people to buy a certain brand of beer or to eat a certain hamburger, I see nothing wrong with speninds hundreds of millions in advertising politics.

    Comment by Steven Taylor — Tuesday, September 21, 2004 @ 11:51 am

  3. Ok, you have indicated an agreement that some regulation is necessary. Which i agree with.

    my main argument is that public harm can come with a completely unregulated system. We can argue over the details and depth of that regulation.

    Comment by Eric — Tuesday, September 21, 2004 @ 1:01 pm

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