Will: McCain and the Oath

John McCain aspires to take the presidential oath to "preserve, protect and defend, the Constitution," but some of his actions have raised doubts about whether he would do that. Two controversies, one now before the Supreme Court and the other perhaps headed there, raise questions pertinent to his grasp of constitutional values.

One case challenges the "millionaires' amendment" to the McCain-Feingold legislation that rations political speech by restricting the financing, content and timing of it. The other case concerns the right of SpeechNow.org to speak freely against people like McCain. If he still supports the former and does not support the latter, he should not take that oath.

McCain-Feingold's purported purpose is to combat corruption or the appearance thereof. The Supreme Court has said that it will be deferential to the legislative branch if but only if the restrictions it puts on political activity have the purpose of preventing corruption.

The millionaires' amendment, however, obviously has nothing to do with preventing corruption. Its patent purpose is to assuage the legislators' dread of self-financing opponents. It says:

When a self-financing House candidate spends more than $350,000, his opponent gets three benefits. The opponent can receive contributions of $6,900, triple the statutory limit of $2,300 per election (primary or general). Second, the donors' tripled contributions are not counted against those donors' aggregate contribution limits for the two-year cycle. Third, the opponent is permitted to coordinate with his party committee unlimited party expenditures that otherwise would be limited by statute. Senate campaigns are subject to even more generous provisions for candidates with self-financing opponents.

This incumbent-protection measure mocked McCain-Feingold's pretense of being concerned exclusively with corruption—candidates cannot corrupt themselves by spending their own money on their own behalf. The Supreme Court says corruption arises from quid pro quo arrangements connecting contributions with particular actions of a public official. Hence, self-financing candidates have minimal susceptibility to coercive pressures and serve McCain-Feingold's purported purpose.

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."