Men in Black (17 page)

Indeed, one of the unintended but entirely predictable consequences of McCain-Feingold’s maze of regulations has been the growth of groups known as 527s (after the section in the Internal Revenue Code under which they are organized). They can raise as much unregulated soft money contributions as they want. These organizations, run by a handful of individuals unaccountable to any political institutions, have become extremely influential.

Since the Democrat Party is and has always been less successful at raising funds from small contributors, some of its wealthy donors have discovered they can simply divert their contributions to these 527 groups, which can in turn use the money to help Democrat candidates. And that’s exactly what has happened. For example, billionaire financier George Soros has committed tens of millions of dollars to Democrat-related groups. The
Washington Post
reported, “Soros’s contributions are filling a gap in Democratic Party finances that opened after the restrictions in the 2002 McCain-Feingold law took effect. In the past, political parties paid a large share of television and get-out-the-vote costs with unregulated ‘soft money’ contributions from corporations, unions and rich individuals. The parties are now barred from accepting such money. But non-party groups in both camps are stepping in, accepting soft money and taking over voter mobilization.”
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According to the Center for Public Integrity, between August 2000 and November 2004, Soros’s contributions to 527 groups included:

Soros isn’t alone. Among the biggest of the Democrat 527 groups’ financial backers is Peter Lewis, who has also poured tens of millions of dollars into several of these organizations. The Center for Public Integrity reported that, as of November 1, 2004, Lewis had contributed the following amounts to Democrat-related organizations:

The Democrats have been far more successful in funding these organizations than the Republicans. The vast majority of the top fifty 527 groups support Democrat causes. As of December 2, 2004, here are the top fifty 527 groups in receipts and expenditures:

Many prominent Democrats either run, are affiliated with, or fund these 527 organizations. They’ve argued for McCain-Feingold and provided most of the votes in Congress for its passage. And these are the same people who for years have proselytized against the undue influence of wealthy, fat-cat Republicans in the political process (though Republicans raise more money from small donors than do the Democrats). Without the millions contributed by Soros, Lewis, and other liberal billionaires and millionaires, the Democratic Party would be at a serious fund-raising disadvantage.

Don’t get me wrong. These organizations should be free to collect money and influence the political process. But so, too, should any other group or person. There’s no reason the political parties should be prohibited from accepting large contributions. There’s no reason individual donors should be limited in the amount they can contribute to candidates. These are all artificial limitations that are intended to control the influence of the electorate over the elected. And I have no doubt that the day is near when these 527 groups will either be regulated out of business or have their voices severely weakened.

Beyond limiting political speech, McCain-Feingold criminalizes unauthorized political participation to an extent that should frighten every citizen. As explained by election law experts Jan Witold Baran and Barbara Van Gelder:

In essence, people may wind up in federal prison for speaking too much about a particular candidate or campaign.

The Supreme Court’s approach to free speech in general is bizarre. For example, the Court was recently more deferential to commercial speech (advertisements) than political speech (the manner in which we select our representatives). Ostensibly, a law that regulates political speech would be upheld only in very narrow situations, while lawmakers would have more latitude to regulate commercial speech. However, in 2001, in
Lorillard Tobacco v. Reilly
, the Supreme Court overturned a Massachusetts law that attempted to regulate commercial speech.
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The Court struck down several provisions of the Massachusetts law that would have banned tobacco advertising close to playgrounds and schools. The Supreme Court stated, “The First Amendment also constrains state efforts to limit advertising of tobacco products, because as long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.”
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The Court also stated that “[p]rotecting children does not justify an unnecessarily broad suppression of speech addressed to adults.”
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It concluded that, “A careful calculation of the costs of a speech regulation does not mean that a State must demonstrate that there is no incursion on legitimate speech interests, but a speech regulation cannot unduly impinge on the speaker’s ability to propose a commercial transaction and the adult listener’s opportunity to obtain information about products.”
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But if a state cannot restrict commercial speech in the name of protecting children, how can Congress, with the approval of the Supreme Court, put such restrictive limits on free political speech?
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Make sense? It wouldn’t have to the framers.

The Supreme Court has gone so far as to grant constitutional protection for the distribution of virtual child pornography. In 2002, in
Ashcroft v. Free Speech Coalition
, the Court held sections of the Child Pornography Prevention Act of 1996 (CPPA) unconstitutional, specifically the prohibition on material that involved “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct.”
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Writing for the Court, Justice Kennedy stated, “Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children…. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.”
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