John McCain: Free speech is worse than forcible castration, internment on the basis of race, separate but equal, and slavery. Really, John?

March 5, 2012   •  By Brad Smith
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You know, I would never dream of telling John McCain how to fly a fighter plane. Just once, I wish Senator McCain would return the favor and quit pretending he knows anything about campaign finance reform.

Senator McCain was on the Tonight Show last week, talking about campaign finance reform, and virtually every sentence that left his lips was misleading or incomplete at best, inaccurate at worst. Or simply outright absurd.

Let’s start with that last category. Senator McCain declared that Citizens United v. FEC, the Supreme Court decision that held the government could not ban books and movies merely because they were produced or distributed by corporations and unions, was “the worst decision in the history of the United States Supreme Court.” Really?

Worse than Buck v. Bell, which held that the state of West Virginia could forcibly  sterilize “imbeciles” against their will? Apparently. Who wouldn’t prefer being forcibly sterilized to listening to some super PAC ads? Worse than Korematsu v. United States, which allowed the government to round up U.S. citizens of Japanese ancestry and put them in internment camps, for no reason other than their ancestry? Guess so. Worse than Plessy v. Ferguson, which upheld “separate but equal” racial segregation? Hey, as long as we didn’t make African Americans sit in a train car with a TV showing negative political ads, who could complain? Worse, even, than Dred Scott v. Sandford, which held that no descendent of a slave could ever be a U.S. citizen, held the Missouri Compromise unconstitutional, and helped trigger the Civil War, in which over 600,000 American soldiers and countless civilians died, another 400,000 plus soldiers were wounded, and half the nation was left wasted? Well, yeah – at least there were no super PACs in the election of 1864. Let’s keep our priorities straight. Oh, sure, Lincoln was called a “filthy story-teller,” “despot,” “liar,” “thief,” “braggart,” “buffoon,” “usurper,” “fiend,” and “butcher,” but at least John McCain’s tender sailor’s ears weren’t around to hear it, which is why he could also honestly tell Jay Leno that he’d “never seen anything like [the negativity of the 2012 primaries].”

But we’re sporting chaps, and we’re willing to cut Senator McCain some slack for his hyperbole. Besides, he can’t be expected to know every nickel and dime Supreme Court decision, and maybe he’s also forgotten Willie Horton ads, or the NAACP ads accusing George Bush of complicity in the truck-dragging murder of a black man, or even the Democratic National Committee runnings ads accusing Bush of intentionally poisoning our water supplies.

But the Senator also got his facts wrong, describing Citizens United as a case that “unleashed any restrictions on campaign contributions,” which is simply not true. Citizens United, of course, did not change the laws on campaign contributions, only on spending done independently of campaigns. Indeed, there remain literally hundreds of pages of law and FEC regulations governing campaign contributions, including prohibitions on corporate and union contributions.

Senator McCain also attributed the result of Citizens United to the lack of electoral political experience on the Court, citing Sandra Day O’Connor and William Rehnquist as justices who had that political experience and so could understand the “damage” done by free speech in campaigns. Clearly, he implied, they would have voted against the outcome, due to their experience in electoral politics (O’Connor as candidate and officeholder, Rehnquist as campaign operative). Yet Justice O’Connor began her career on the Court as an opponent of campaign finance regulation. She was a dissenter in Austin v. Michigan Chamber of Commerce, one of the cases overruled by Citizens United. She wrote a concurrence in FEC v. Massachusetts Citizens for Life that was tougher than the majority opinion that found the federal statute unconstitutional. It was only after she had been away from electoral politics for more than two decades that she gradually shifted her view to support campaign finance regulations against Constitutional challenges. As for Justice Rehnquist, in addition to being part of the original majority in Buckley v. Valeo, he dissented in McConnell v. FEC, the case that upheld the constitutionality of the McCain-Feingold law – and was partially overruled by Citizens United, which was decided after he left the Court.

After several more incorrect or misleading statements (such as the idea that Citizens United allowed for unlimited individual campaign spending, which was actually allowed by Buckley 34 years earlier) and a bit of innuendo and appeal to base emotion (suggesting that a “Super PAC” supporting Newt Gingrich was being funded by “money from China” (it’s coming from a U.S. citizen resident in Las Vegas), Senator McCain finally left us with this pearl of wisdom: “Sooner or later there’s going to be a scandal.” Well, at least we can agree on that. Because “sooner or later” there is always a scandal. There are crooks, and there are corrupt officials. Hence, from time to time there are scandals. Senator McCain wants to suggest that such scandal will be due to Citizens United. 

But that makes it hard for the Senator to explain the Jack Abramoff scandal, which occurred during the short era that McCain-Feingold legislation was in force. As did the Bob Ney scandal. And the Duke Cunningham scandal. And the William Jefferson scandal. Or Senator McCain’s own complaints about “earmarking,” which is legal but, in the Senator’s eyes, corrupt. Or the crony loans to Solyndra, made during the reign of McCain-Feingold. Arguably, the 6 years between the enactment of McCain-Feingold and the Supreme Court’s Citizens United decision overturning part of that Act are the most corrupt in America’s post-World War II history.

And after all is said and done, what is the other big reason for Senator McCain’s concern? He feels that the ongoing fight for the Republican nomination isn’t helping Mitt Romney and Republicans, and he blames that on super PACs. Of course, perhaps Newt Gingrich and Rick Santorum supporters don’t agree that a serious primary fight is a bad thing. Perhaps Republicans, who won numerous House races in 2010 thanks to super PAC spending offsetting some of the cash advantage held by Democrats, think it is good to have more competitive congressional races.

But Senator McCain will have none of this nonsense. If only the Supreme Court would focus on upholding forced sterilization, separate but equal laws, internment camps for U.S. citizens, and slavery, this 2012 campaign just wouldn’t be so darn competitive and negative. And if only Senator McCain would stick to fighter planes, and quit trying to restrict the political speech of the rest of us…


Brad Smith

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