Feingold Misstates the Law, Again

One of the tiring bits of debating campaign finance law is that reformers regularly - and in my opinion intentionally - misstate the law, and their opponents' arguments, to make their political points. So here we have Russ Feingold, writing to the Washington Post, to complain that George Will, in this column, "repeats the false arguments that our reforms banned speech...."

Well, read Will's column. No where does he say that. He does write that the reformers, "enact[ed] special protections against wealthy opponents, and 'blackouts' on much pre-election advertising." And that is true. "Much" is a very important modifier here. Will does not claim that reformers "banned speech," but rather that they banned "much speech." I suppose one can argue about how much constitutes "much," but there can be no argument that McCain-Feingold did, was intended to, and is generally defended by Feingold and others on the grounds that it banned some speech.

Feingold then repeats another increasingly popular canard of the reform community, that McCain-Feingold was all about having everyone "play by the same rules." Or to be precise, he argues that McCain-Feingold merely required, "groups that run ads close to an election ... to play by the same rules that candidates do." In fact, candidates are still treated differently than "groups that run ads close to an election." In fact, the latter are actually treated more favorably in some ways. If Feingold really wanted to suggest Will's column overstated the degree to which McCain-Feingold restricts political speech, why wouldn't he mention that?

The reason is because the reformers know the superficial appeal of saying, "everyone should play by the same rules." But in fact, not everyone plays by the same rules at all. As former Federal Election Commissioner Bradley A. Smith wrote in Roll Call (subscription required), the rules differ for most everyone, including, notably, the press. To take Feingold's example, why should any group that even mentions a candidate in an ad close to an election play by the same rules as candidates? Does a corporation buying an ad saying "call Senator Feingold and urge him to support the President's immigration initiative" really merit the same treatment as a corporation giving money directly to a candidate to do what he wants? Maybe, it's not entirely obvious, is it? But by invoking "same rules," (even though it is not really true) Feingold avoids having to justify why those rules should apply. Moreover, he has a selling point for his bill, even if it is based on misstating what the law actually says.

Thanks to Richard Hasen's Election Law Blog for bringing Feingold's inaccurate letter to my attention.