Campaign Crawlers

Fred and the First Amendment

Getting to the bottom of Thompson's McCain-Feingold campaign finance reform views.

By 7.23.07

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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.

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