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McCain-Feingold Slipping Away?

Campaign finance reform advocates were cringing today as the Federal Election Commission released draft versions of new ground rules for any political ads paid for with corporate or union money.

The commission offered two competing proposals for how this a television commercial must be written if it's underwritten by corporate or unions money. They are scheduled to vote on the drafts at a meeting next week.

Under either version, the ads would be permitted if they focus on a "public policy issue" and don't mention the election or specifics about the campaign, according to Loyola Law Professor Rick Hasen.

One version of the proposed FEC rule changes, Hasen said, will reopen the door to so-called "sham issue ads," which are essentially political attack ads dressed-up to look like they were about a specific policy question. The second version will do that, plus eliminate a requirement that the group that sponsors such an ad disclose the source of the money that funded it.

"This is very troubling," said Paul Ryan of the advocacy group the Campaign Legal Center.

The advocates knew something like this was coming. The FEC's action came in response to a recent Supreme Court ruling that dialed-back Congress's landmark effort to regulate campaign finance laws. While some hailed the court ruling as a repudiation of limits on free speech, others said the practical result would be robust efforts by businesses, unions and special interests to wage ad campaigns during the 2008 presidential and congressional contests.

Hasen responded to the FEC drafts in his blog today with some examples of advertising messages that would have been prohibited under the McCain-Feingold law if paid for by unions or corporations, but would now be permitted.

The Loyola Law School professor offered the following as examples of such hypothetical advertising messages:

"Call Sen. Clinton and tell her to stop coddling illegal aliens and terrorists by supporting the NY drivers' license plan."

"Call Mitt Romney and tell him more of our soldiers shouldn't die in an unnecessary war in Iraq."

"Call Rudi Giuliani and tell him that his support for gay rights is ruining the moral fabric of this country."

But more troubling to some advocates, said Ryan, was the draft version that would eliminate the requirement that the groups funding these ads disclose who is paying for them. That issue had not been addressed in the latest Supreme Court ruling.

"We strongly oppose the draft that would exempt [such ads] from the disclosure requirements," Ryan said. "The disclosure requirements had previously been upheld as constitutional."

Mike Schrimpf, whose group the Center for Competitive Politics has voiced concern about several provisions of McCain-Feingold, said he does not expect there to be sufficient support among FEC commissioners to get rid of the disclosure requirement.

"However, we believe there is a strong argument against disclosure that may mean the disclosure requirement will be the next challenge to [McCain Feingold]," Schrimpf said. "Once a communication is determined to be a genuine issue ad - that is, the ad is not be the functional equivalent of express advocacy - there is no constitutionally recognized interest in compelling disclosure."

--Matthew Mosk

By Washington Post editors  |  November 16, 2007; 5:54 PM ET
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