Avoiding the Issue Ads

Sen. John McCain's Straight Talk Express was derailed pretty decisively on super Tuesday. Many explanations for McCain's loss are possible, but McCain fans were certainly upset by Texas software multimillionaire Sam Wyly's ads the week before the vote attacking McCain's environmental record, and praising Gov. George W. Bush's.

Those excited about campaign finance reform, one of McCain's pet issues, think that "issue ads" like Wyly's are a sleazy loophole in our current system of campaign finance law. Since such ads discuss political matters without explicitly saying in so many words to vote for or against a political candidate, they fly under the radar of legal restrictions on spending and disclosure for campaign ads.

What campaign-finance reformers seem to forget is that our Constitution has a First Amendment, widely understood to protect—at least—the right to free speech about politics. And politics involves elections. Thus, it's very hard to make the sort of distinctions they want to make between mere free political speech and speech, like Wyly's ads, that seems directly connected to an election. Issue ads like Wyly's ought to be considered perfectly fair play in the American political arena.

One can't accuse McCain of a conversion of convenience. He's always been against issue ads, even before they were aimed at him in a vulnerable moment of his presidential run. In fact, his proposed McCain-Feingold campaign finance bill, killed by filibuster in the Senate last year, would make sure that no private citizen or group of same could buy ads declaring their beliefs about a political matters within 60 days of an election.

Why are some people so upset about unregulated exercises of political speech like Wyly's? A couple of years back I debated campaign finance reform before a Los Angeles chapter of the ACLU, and learned a lesson. I expected those First Amendment absolutists to be an easy crowd. I was mistaken.

I told stories I found heartbreaking about small-scale grassroots citizen activists battered by fines eight times the total amount their recall campaign had spent–fines that exceeded their likely lifetime incomes–for running afoul of California's equivalent of the Federal Election Campaign Act. Still, I met a chilly reception.

One elderly lady explained to me the heart of the gathered civil libertarians' problem. She waved her hand testily, telling me that sure, it was awful what could happen to the occasional unfortunate who didn't have the legal expertise or bookkeeping manpower to satisfy every twist of campaign-finance law. But what was really important, she told me, was that rich people had too much influence on politics.

Indeed they do. But the practical effect of further bureaucratic restrictions on participating in electoral politics is to further stymie smaller, less wealthy political participants at the expense of big money. This hurts both candidates and grassroots advocacy groups, the sort most often accused of violating campaign finance law with issue ads speaking their minds. No wealthy professional campaign would be apt to run afoul of campaign finance reporting requirements like the small-time California activists whose stories I told the ACLU. If we want a lively, committed electorate, the fewer legal demands placed on participation in the political debate, the better.

The Wyly controversy shows that in a vibrant, competitive, well-covered political arena, the fear of secret influence over politicians that underlies most campaign-finance law is overblown. Now anyone who cares knows of Wyly's background and his various connections with Bush. They can make their decisions about how to react to his ads thusly.

Wyly denies any actual collusion with the Bush campaign, the sticking point that defines whether he is merely a citizen speaking out on public matters or a campaign finance criminal. If McCain's campaign finance reform came about, everyone speaking out on public matters related however tenuously to an election would become a potential criminal.

If political speech is meant to be as free as possible of legal entanglements—and the First Amendment, if it means anything at all, surely means this—then campaign finance law is rotted at its root. When, in the name of improving democracy, campaign finance reformers try to restrict issue ads, they restrict democracy itself, because issue ads are nothing other than the expression of opinion about issues and candidates in the political debate. American politics can handle a hundred Saw Wyly's before it can risk a single citizen losing her right to advocate a political opinion publicly without government restriction.