5-4 Supreme Court Weakens Curbs on Pre-Election TV Ads

Ruling on McCain-Feingold Law Opens Door for Interest Groups in '08
By Robert Barnes - Washington Post Staff Writer - Tuesday, June 26, 2007
The Supreme Court yesterday substantially weakened restrictions on the kinds of television ads that corporations and unions can finance in the days before an election, providing special interest groups with the opportunity for a far more expansive role in the 2008 elections.
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RESPONSE FROM MARTIN FROST
Election ad ruling: I told you so
By Martin Frost - June 26, 2007

I almost never crow about a prediction. But Monday’s U.S. Supreme Court decision on the McCain-Feingold campaign legislation passed by Congress is the exception. Damn it, I told you so.

During congressional consideration of this legislation in 2001 and 2002, I repeatedly told my House colleagues that this was a terrible bill that would have truly awful consequences when the Supreme Court got through with it.

I even tried to insert a nonseverability clause into the legislation, which would have provided that the whole legislative scheme would fail if any portion of it were declared unconstitutional.

Almost nobody would listen. Other than Sen. Mitch McConnell (R-Ky.), who also tried to sound the alarm, virtually everyone in Congress turned a deaf ear to my prediction.

You see, my colleagues in the House and Senate did not want to offend the editorial pages of The New York Times and the Washington Post. They did not want to be painted as “anti-reform.”

Here is the crux of my argument made repeatedly to members of the House Democratic Caucus:
The legislation neutered our two major political parties by prohibiting them from raising soft money (large corporate, union and individual contributions) that could be used for issue ads during the closing weeks of a campaign.

At the same time, the legislation enacted a Rube Goldberg scheme that permitted corporations and unions to finance issue ads until 60 days before general elections, after which they were banned until the election.

It was my position (which proved to be 100 percent accurate on Monday) that the U.S. Supreme Court would strike down the ban on corporate and union issue advertising during the two months before an election as an unconstitutional intrusion on free speech.
Thus special interests would have a green light to attack federal candidates during the closing days of a campaign (as long as they avoided using the magic words “vote for” or “vote against”) and the two major political parties would be defenseless to come to the aid of their own incumbents from these attacks because they could no longer raise soft money (the exact type of money being used by outside groups to launch these attacks).

Political parties could use “hard money” for these type ads. But “hard money” is, by definition, raised in much smaller amounts and primarily used for other purposes by parties.

My colleagues ignored my prediction and simply said, “Our lawyers have told us this is legal and we are going to do it,” even though the Supreme Court throughout the 1970s and 1980s had handed down a series of opinions equating the right to spend money on politics with the right to free speech.

And so we now have the worst of all worlds – unlimited special interest spending on federal campaigns and political parties powerless to combat it.

I told you so.

Martin Frost, a Democrat, represented the Dallas-Fort Worth area from 1979 to 2005. He rose to caucus chairman and head of the DCCC. He is now an attorney with Polsinelli Shalton Flanigan Suelthaus PC in Washington and serves as president of America Votes, a grass-roots voter mobilization and education effort.



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