More on the anniversary of McCain-Feingold, more volleys over the success of failure of the law:  David Vance, writing for Roll Call (and on the CLC blog), defends the law against "propaganda," and Senator Mitch McConnell hopes that the Supreme Court will cheer propagandists, in the Wisconsin Right to Life case, by limiting if not invalidating the reach of the pre-election advertising ban on corporations and unions.   Mitch McConnell, "Free Speech Gets Another Day in Court," Wall Street Journal (April 24, 2007) at A19.

 

      Not much fresh argument remains to be written or spoken.  Not much appears in either piece.  But McConnell does make a point, a purely political one, about the unusual alliances forming around criticism of the law.  In Wisconsin Right to Life, organizations of both the left and right have set aside other and quite fundamental disagreements and support one another in this cause.  This alliance has no direct bearing on the merits:  the question of whether the law impermissibly burdens speech and association is not settled, in substance, by this or any other coalition of opinion.

 

      McConnell does, however, predict that the law will continue to be vigorously litigated, and he sees in this a mark of "the law’s instability."  This is worth considering:  that the significant (and some would say, mounting) opposition to the law, and the endless disputes over its meaning and alleged "loopholes," have sapped its credibility and put into doubt its effectiveness.  This instability is costly—to the litigants, but also to the bystanders, who include not only members of a befuddled public but also a range of political actors denied any clear or settled understanding of what the law allows.  "Specialists" are springing up all over the place, ready to the help.  Their services are not cheap; access to those services is not widely available.

 

      Vance says:  yes, but the Congress prohibited national parties from accepting soft money and, since the parties comply with the law, the law is a success.  This is the narrowest possible vindication of this law.  And it requires willful disregard of the reformers’ own claims—reformers including the very Campaign Legal Center hosting republication of Mr. Vance’s Roll Call article. 

 

      For reformers, from the beginning, contended that parties, acting through their operatives, were attempting to "circumvent" the law, by setting up or associating themselves with party-controlled political committees or 527s to accept the soft money that parties were now compelled to decline.  The question has never been whether the parties would accept soft money in direct defiance of the law.  It is the indirect defiance, labeled "circumvention," that reformers have made the issue, and they have brought that charge against the parties along with many others.  Even now, in investigations of 527s, the FEC, like reform organizations, casts a wary eye on the involvement in these organizations of party operatives and activists.

 

      In truth, no part of the law is uncontested:  not the ban on party soft money, not the solicitation of soft money by candidates or officeholders, not the ban on corporate or union pre-election advertising.  It is all contested, these and other provisions, and the disputes show no sign of abating.  Senator McConnell is right:  the law is unstable.  And here is to be found a clue to its life expectancy.

 

Bob Bauer