The McCain-Feingold Ghoul

What George Will called in his May 8, 2003 column “1,600 pages of confusion”, the Bipartisan Campaign Reform Act (BCRA) otherwise known as McCain-Feingold, has grown enormously upon its quandries into how we can have free speech without money. Scroll about the Federal Elections Commission’s website to set your eyes and mind reeling.

Today, the D.C. Court of Appeals decided that the rules drafted by the FEC are too weak and, as the Washington Post reports, “urged the FEC to write new rules that help prevent corporations, unions and special interest groups from influencing federal elections.”

The opinion will not have practical implications for the 2008 elections, as it will take months for the FEC to draft new rules implementing the McCain-Feingold law. And the FEC could still appeal this ruling to the U.S. Supreme Court. For now, the FEC's current rules will apply.

But the opinion suggests that, down the road, the FEC will have to crack down on efforts by federal candidates to coordinate their campaign activities with corporations, unions and special interest groups, said Donald J. Simon, an election lawyer who helped argue the case.

As CQ’s Politics reports, however,

After nearly six months of paralysis, the Federal Election Commission could be back in business this month, thanks to a compromise ending a drawn out standoff in the Senate over nominations to the agency that oversees campaign finance law….

But, there’s a huge backlog of matters to deal with, with four of the six commissioners new to the job and, as former commissioner Scott Thomas says, “So when you have a whole bunch coming on at once, you have a lot of pulling in several different directions.”

WaPo says the former FEC Commission chairman Michael Toner:

is appalled by the court ruling. He said the FEC took pains in formulating its rules. And, he said, the commissioners were "on solid ground" by creating different standards for ads that aired six months or a year before an election.

"The FEC compiled an exhaustive record, went through thousands of broadcast commercials and carefully crafted these regulations based on the empirical record," Toner said. "The court is essentially substituting its own view."

The BCRA hijinks will continue. Campaign law attorneys will get richer. Free discourse weaker and more burdened. I hope George Will will now count the added pages of confusion.

BTW:
Rasmussen’s poll in April has only 31% favoring public financing of presidential campaigns. The FEC reports that tax-return $3 check-off contributions to presidential campaigns have dropped 25%, unadjusted for inflation, between 1995 and 2007, to $51-million. There’s no empirical public support for the suggestion that there be more public financing, bound up in thousands of pages of more rules undecipherable to citizens, compared to free speech.