Editor's Note: This column appeared at some point in 2005. Here's a preview, posted without FEC Chairman John McCain's permission. Read it at your own risk.
Assuming this republic continues on for some time, political historians will look back to 2004 as the year censorship came to America. The groundwork was laid earlier and it didn't take quite as well as it might have with a more servile population -- not at first, at least. But when our elected representatives and most of the press locked arms against "negative campaigning" by nefarious "outside groups," we knew the jig was up and really didn't know how to fight it.
A prime exhibit of this game-rigging approach, saved for posterity, is the September 20, 2004 issue of Newsweek. Under the banner "Politics & Money," the cover carried the headline "THE SLIME CAMPAIGN: How Both Sides Are Using the 527 Loophole to Throw Mud and Turn Out the Vote." Two black-and-white low definition televisions showed a younger George W. Bush in his cap and bomber flight jacket, and a post-Vietnam John Kerry, hair an unruly mop, testifying before Congress. Turn the page and the table of contents promised to explain "why it's gotten so mean."
In an historic guest opinion piece, Senator John McCain -- of McCain-Feingold fame -- railed against "the rise of so-called 527 groups, with their billionaire backers and nasty, negative television ads that threaten to bring politics to a new low." He wrote that these groups were in violation of the law, and that the only thing standing between the voters and cleaner, fairer elections was the Federal Election Commission's "despicable failure to do its job." Short run, McCain promised to go after 527s in court; long run, a legislative solution: force the FEC to endorse his evolving ever-stricter idea of what makes for a fair campaign.
McCain was particularly incensed by a group known as the Swift Boat Veterans for Truth, which promoted a book and paid for radio and television ads calling into question Kerry's heroism and behavior during his four-month stint as a Swift boat captain during the fracas in Indochina, as well as his antiwar advocacy after. As McCain put it to USA Today, "I am sick and tired of refighting the Vietnam War."
He pressured Bush to first denounce all 527s and then, specifically, to zero in on the much maligned Swift vets. Though the president's wife indicated some sympathy for what the vets were trying to say, Bush publicly held the line that all "unregulated soft money" should be banished from politics. One wag, setting Voltaire on his noggin, summarized Bush's view thus: "I approve of what you say, but I will oppose to the death your right to say it."
Court challenges to 527s caused a lot of grief for activists -- and dissuaded some people from speaking up -- but ultimately failed, because those groups fell within the letter of McCain-Feingold, if not what McCain insisted was the intent of the legislation.
Arguably, this won the election for Bush. Though left-leaning 527s outspent the pro-Bush or anti-Kerry groups by a factor of more than five to one, the image of Kerry's former colleagues coming forward to cast doubt on his character and judgment had a demoralizing effect on the senator. During the second debate, he lent credence to the charges that he was a conspiracist by blaming Bush for ads that the president has specifically denounced. When he pulled out a diagram to show the links of the Swift Vets to the Bush campaign, it was all over.
On the morning after the election, the New York Times editorialized that this had been the vilest, most corrupt campaign in recent memory and called the Swift Vet ads "worse than Willie Horton." Sensible editorial boards around the country called for the existing finance laws to be strengthened, for the 527 loophole to be closed. From the floor of the Senate, John McCain offered to resign his position to head a new, stronger FEC, one that would banish "gutter politics and anonymous attacks on the character of the members of this fine institution" and his colleagues overwhelmingly voted to tighten the campaign finance laws, to give the FEC more power, and to give the regulatory body over to the leadership of their distinguished colleague, who promised to end "politics as we know it."
Of course, at the time, very few people realized that the lame duck legislation contained provisions to extend the agency's oversight of "electioneering communications" to include press coverage. Those who did understand the legislation certainly didn't expect the Supreme Court to sanction an abridgment of such a basic First Amendment right. And next to no one expected that McCain's approach would prove so unrelentingly hostile to the very democratic values that he promised to uphold...
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