McCain's Don't (You) Talk Express Rolls Over the First Amendment


New Hampshire voters are an inscrutable lot. In northern New England, we admire the virtues of the strong silent type, like Calvin Coolidge, born in Vermont and sworn in there as the 30th President of the United States. Coolidge was called "Silent Cal" and he oft expressed an affinity for keeping his thoughts to himself. "I have noticed that nothing that I never said ever did me any harm," he said. And that holds true in New Hampshire as well. The famous rock profile, the Old Man of the Mountain, sat atop Cannon Mountain for centuries without once expressing an opinion about anything.

So what were New Hampshire Republicans and independents who voted in the New Hampshire Republican presidential primary saying in voting for John McCain? Were they saying they are ignorant of McCain’s profound indifference at best, or his contempt at worst, for the First Amendment? Or were they saying they share that indifference or contempt?

I would guess probably not the latter. New Hampshire voters, like those in the rest of the nation, have an uneasy feeling about the influence of money on the political process. But if you put the Bi-Partisan Campaign Reform Act of 2002, with its undeniable abridgements of the constitutionally guaranteed freedom of speech, on the ballot in a referendum and had a reasonable campaign about it, it would probably lose. No doubt a lot of money would be spent to defeat it, but a lot would be spent in support of it as well. And I believe it would lose.

Yet it is the most well-known legislative achievement of U.S. Sen. John McCain, R-Arizona, who is, after all a legislator and not Secretary of State or Secretary of the Defense. People may like his approach to foreign policy or national defense, but his primary job over the past quarter century has been to make laws for the United States. And if "McCain-Feingold" is his legislative showpiece, you may wonder what the losers were like.

For those who may have forgotten the import of McCain-Feingold, it imposed restrictions on political spending that were supposed to reduce the corrupting influence of money on political campaigns. It placed limits on "soft" money that parties could contribute to individual candidates, along with restrictions on spending by unions and corporations, though "corporations" is a very broad term.

A political action committee is a corporation, usually registered as such with the state in which it operates. The Wisconsin Right to Life Committee, Inc. is such a corporation. In the fall of 2006, Wisconsin Right to Life sought to run political advertisements calling on the state’s two U.S. senators, Herb Kohl and Russell Feingold, to oppose filibusters and other procedural delays of votes on President Bush’s judicial nominees. The ads were ruled a violation of the McCain-Feingold law by the Federal Elections Commission because it mentioned both senators by name within 30 days of a primary and 60 days of a general election in which one of them (Feingold) was a candidate for election.

Ironic, isn’t it, that the law, which many denounced as an incumbent protection act, would so soon be applied to specifically protect one of the bill’s sponsors, who was a candidate for reelection in ’06. It is also worth noting that the application of the law in this manner gives the lie to the argument commonly made in defense of campaign finance reform, that "money is not speech." Two points need to be made clear concerning that bogus argument.

First of all, the argument itself is misleading. Money is not privacy, either. But if, in violation of the Fourth Amendment guarantee of freedom from unreasonable searches and seizures, the state were to seize your money without a warrant, it would still be a violation of the Fourth Amendment. And when the government prohibits you from spending your money to broadcast your message, that is a violation of the First Amendment’s guarantee that Congress shall make no law "abridging the freedom of speech."

Secondly, the provision that prohibits mention of a candidate’s name is a control over the content, not the cost, of the ad. I am not privy to the rates and conditions placed on commercials run on Wisconsin television stations, but I would hazard a guess that a 30-second or 60-second issue ad would cost the same, whether or not it mentions a candidate’s name. By prohibiting such mention, the law certainly controls the content of speech in a way that has nothing to do with obscenity, incitement to riot, slander or falsely crying "Fire!" in a theater. Anyone see a constitutional red flag here?

But when Wisconsin Right to Life challenged the FEC ruling all the way to the U.S. Supreme Court, Sen. John McCain did not say, "Wait a minute! This kind of prohibition is not at all what we meant when we wrote and passed McCain-Feingold." On the contrary, he filed an amicus curiae argument in support of the FEC position.

And the Supreme Court, in a hair-splitting, hand-wringing decision issued last year, said the ads were (or would have been) legal because all things considered, they really weren’t intended to influence the outcome of the election campaign in which Feingold was a candidate. Oh. So now it’s legal for us to exercise the freedom of speech over the commercial airwaves as long as we are not trying to influence the outcome of an election. Yet it is precisely for such a purpose, among others, that the right to exercise the freedom of speech is guaranteed by the Constitution.

Yet McCain apparently believes that in campaign finance reform there is a higher law than the Constitution — there is the McCain standard of purity.

"Obviously, from what we’ve been seeing lately, we didn’t complete the job," McCain said about campaign financing when interviewed on radio by Don Imus in the spring of 2006. "But I would rather have a clean government than one where quote First Amendment rights are being respected that has become corrupt. If I had my choice, I’d rather have the clean government.”

McCain is entitled to his own personal "rathers," but as a United States Senator his oath of office requires him to uphold the Constitution of the United States, not his righteous concept of cleanliness. His attitude toward the First Amendment is nothing if not arrogant. And more arrogance in disregard of the requirements written into the Bill of Rights is not what we need in the White House at any time, but especially after eight years of the Bush-Cheney regime. We don’t need John McCain in the Oval Office, attempting to "complete the job" of emasculating the First Amendment

No doubt some New Hampshire voters who chose McCain support the controversial law that bears his name. Many others did so either having forgotten or having never informed themselves about McCain-Feingold. Others knew of it, but preferred McCain for other reasons. They are not "single-issue voters."

But the Constitution of the United States is not a "single issue." It should not be an issue at all. It is the "supreme law of the land," higher even than Sen. McCain’s exalted sense of honor or his standard of cleanliness. To overlook that is to overlook quite a lot. As some wag said, "Other than that Mrs. Lincoln, how did you enjoy the play?"

Other than that, New Hampshire, how do you like the Bill of Rights?

Manchester, NH, resident Jack Kenny [send him mail] is a freelance writer.