When last we left off in the battle to pin the
McCain-Feingold tail on the donkey (the elephant would be more
politically accurate), Fred Thompson supporters were complaining
that their prospective candidate was being put in the same category
as John McCain — that of potentially reviled figures who gave
birth to the dreaded campaign finance law.
Among other things, McCain-Feingold is despised by movement
conservatives and many conservative activists because of its
attempt to ban “issue ads” — ads by political interest groups
which do not expressly advocate for a particular candidate’s
election in the period leading up to federal elections. This
portion of the law, at least as applied to a particular Wisconsin
Right to Life ad, was recently struck down by the Supreme Court.
Thompson supporters noted that in a recent Sean Hannity interview
Thompson answered “yes” when asked if would support the repeal of
the issue ad ban.
This raises an interesting issue for Thompson, who signed an
August 5, 2003 amicus brief to the U.S. Supreme Court arguing that
McCain-Feingold should be upheld. A few others have looked at the brief but it is worth
a closer inspection, especially in light of the helpful hints about
the former senator’s key role in the bill’s passage being
circulated by rival campaigns.
The brief is chocked full of interesting tidbits about
Thompson’s association with McCain-Feingold (formally known as the
Bipartisan Campaign Reform Act). The brief’s introduction reminds
us that Thompson “co-sponsored the Senate bill Congress enacted”
and that he — at least he did four years ago — had “a strong
interest in the McCain-Feingold reforms being upheld as
constitutional.” The introduction continues to explain that
“Unanticipated loopholes… allowed for ‘campaign finance law
manipulation and corruption’ that needed to be redressed to restore
confidence and integrity in our electoral system.”
Much of the brief addresses the evils of so-called soft money,
but there is plenty to read about the issue ad ban that was such an
anathema to conservative interest groups. Section II of the brief
is entitled: “Congress Had a Compelling Interest in Regulating Use
of Soft Money to Fund Sham ‘Issue Ads.’” The brief first addresses
“sham issue ads” which the national and state political parties
designed, but then Thompson takes aim at “non-party groups” — Club
for Growth, Americans for Tax Reform, and Right to Life would fall
here — which he says “identified and exploited” previous law to
avoid hard money contribution limits but nevertheless influenced
elections for federal candidates. His brief takes to task a
conservative group “The Coalition: Americans Working for Real
Change” and another outfit named Triad Management Services, which
ran ads to counter-balance the AFL-CIO. Thompson decries the close
coordination between these groups’ ads and the messages and
placement of the RNC ads, arguing that these groups were able to
dodge the “disclosure and campaign contribution limits of the
federal election laws.”
Thompson’s opponents and perhaps some of the conservative
interest groups that so vigorously opposed the issue ad ban as an
infringement on core First Amendment speech now may want to know
why he has changed his mind on the issue ad ban. He may, if he
chooses to take a lawyerly approach, try to draw a distinction
between groups his brief discussed (which ran ads closely
coordinated with political parties) and groups later vindicated by
the Supreme Court which produced ads such as the Wisconsin Right to
Life spot at issue before the Supreme Court. However, First
Amendment advocates are not likely to be satisfied since
McCain-Feingold’s broad application to all types of political
advocacy was precisely the reason they opposed it so strenuously.
It remains an open question why Thompson now agrees with groups
like the NRA and Right to Life, whose concerns he dismissed four
years ago, that the issue ad ban should go.
When Thompson stops testing and dives into the water he will
need to have some ready answers, just as Mitt Romney had to explain
his changes of heart on key issues. When did Thompson realize that
the “sham issue ad” ban dangerously chilled First Amendment Rights?
Before he started mulling a presidential run he did not, as far as
we know, indicate any misgivings about the law he authored and its
effect on dozens of conservative interest groups. An honest
explanation of his reasoning and a clear statement as to whether he
supports the rest of the bill (John McCain has said he does) would
go a long way toward an understanding of his evolution on this
issue, and perhaps his mindset and values on other issues as
well.
