That ain't right.

The Ends and the Means

The law aims to prevent "both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption." Lofty, noble goals, indeed. And goals that should definitely be addressed.

We can probably all agree that there's no internal, stealth threat to democracy like a corrupt [or incompetent: FLORIDA 2000, anyone?] election process. Except perhaps selectively outlawing some political speech made by some people under some circumstances. Or by making that speech an administrative nightmare and financial burden to conduct, so that speech is stifled without actually being outlawed.

Remember the poll tax? How about the grandfather clause? Or the voting literacy tests? None of these measures outlawed voting itself. They just created an artificial barrier to entry, making it virtually impossible — not by law, but by barricaded access — for a particular group of people to vote. They were measures meant to ensure victory for certain candidates: they were about power, control, and maintaining the status quo.

The McCain-Feingold law doesn't quite go that far because it addresses campaign contributions and electioneering communications [a.k.a. advertisements, promotions, etc.], and not voting itself. But still, while its goal might be to curb corruption, its effect will be to silence dissenting voices — often the collective voices of many people — while continuing to give way to individual, powerful voices. This outcome will absolutely corrupt the election process: it will affect which candidates individuals vote for by restricting what they can learn about them, who they can learn it from, and how and when they can learn it.

The law calls for these so-called political committee organizations to create a special offshoot political action committee [PAC] in order to be able to run unrestricted ads before an election. The PAC administrative and reporting requirements impede free speech by adding another layer of cost and complexity, while also obliterating anonymous donations. According to the ACLU:

If a group wanted to take out a broadcast, cable or satellite ad during this period they would have to create a PAC where donors would have to be disclosed to the FEC in a way never before sustained by the courts. The opportunities that donors now have to contribute anonymously (a real concern when a cause is unpopular or divisive — see NAACP v. Alabama) would be eliminated.

The FEC is the Federal Election Committee. It will regulate the PACs and how they spend their money. That includes keeping track of whose money is being spent on what. Maybe I don't want anyone to know I support certain causes. Knowing that my name will go on record for that cause might actually make me think twice about donating to it. Or it might make me opt out altogether. Any time you take away anonymity, you hinder free speech.