McCain and the Oath

McCain, who is easily aggravated and sometimes seems to think that whatever aggravates him should be illegal, said "all of us are aggravated" by high-spending self-financing candidates. He seemed aghast that under the amendment, "A millionaire can spend $1 million and immediately the other person can raise $50 million in coordinated and direct party expenditures." So McCain understood that the amendment punishes self-financing candidates who use their noncorrupting money to disseminate their political speech. And it punishes them by increasing their opponents' access to supposedly corrupting money. But McCain voted for it. Perhaps he, like many other legislators, wanted to "level the playing field." The court, however, has held that it is unconstitutional to legislate equal quantities of speech.

SpeechNow.org, which accepts contributions only from individuals (no corporations or unions), has been formed to urge voters to support candidates who oppose, and oppose candidates who support, restrictions on political speech, such as McCain-Feingold. SpeechNow says that because it will not give a nickel to any candidate or campaign, it is not a "political committee" and should not be subject to the $5,000 limit on contributions from any individual. The Federal Election Commission, which exists to administer restrictions and hence is unsympathetic to SpeechNow.org's mission, fortunately lacks a quorum to answer this question, so SpeechNow has asked a federal court to answer it.

A billionaire—say, George Soros, a supporter of McCain-Feingold and donor to John McCain—can spend $1 million to disseminate his enthusiasm for campaign restrictions (on others). But 100 individuals could be forbidden to exercise their First Amendment right of free association by organizing through SpeechNow to pool $10,000 apiece in order to exercise their right of free speech to refute Soros. Does McCain think that would be fair?

He could assuage some doubts about his judgment, and about his capacity to rethink his pet ideas when they have perverse consequences, if he would file two amicus (friend of the court) briefs. One, to the federal court in the SpeechNow case, should defend that organization's right to speech as unrestricted as Soros's. McCain's other brief, to the Supreme Court, should argue that the millionaires' amendment is unconstitutional.

McCain has not been bashful about advising the Supreme Court. He filed a brief urging it to uphold McCain-Feingold's "blackout" period, as applied in 2004 to Wisconsin Right to Life, a small citizens' group that posed no threat of corruption. WRTL wanted to run an ad urging Wisconsin's senators, Herb Kohl and Russ Feingold, not to participate in filibusters against the president's judicial nominees. But because Feingold was running for re-election, the ad was declared an "electioneering communication" because it referred to a candidate for federal office. McCain-Feingold bans such ads 30 days before a primary or 60 days before a general election—when ads matter most.

Fortunately, the court rejected McCain's argument for suppressing WRTL's speech. If he will not file briefs in the cases of the millionaires' amendment and SpeechNow, voters can judge if he would "preserve, protect and defend, the Constitution."

© 2008