NCPA - National Center for Policy Analysis

Is McCain- Feingold Constitutional?

April 6, 2001

Aside from all the other debates and issues swirling around the McCain-Feingold campaign-finance bill, one question alone is paramount, legal scholars say: Is it constitutional? Many argue that it is not.

They predict the U.S. Supreme Court will eventually find it to contain an impermissible and unacceptable attack on the First Amendment's core protections of political freedom.

  • The bill would prohibit an issue-related broadcast or cable television ad that "refers to" any federal politician within 30 days of a primary election and 60 days of a general election.
  • It would be a federal criminal offense for a corporation or union to put forth these sorts of ads during the blackout period.
  • Opponents warn that freedom of speech would be abridged, the right to criticize elected officials would be suppressed, and issue advocacy would be subjected to unprecedented restrains.
  • Through its broad ban on "coordination" between citizens' groups and politicians, the bill criminalizes constitutionally-protected contacts that citizen groups -- or even individual citizens -- have with their elected representatives.

Critics charge that these sweeping new "coordination" rules would severely disrupt the First Amendment rights of free speech and petition -- and drive a wedge between the people and their elected representatives.

Source: Laura Murphy (American Civil Liberties Union) and Joel Gora (Brooklyn Law School), "An Unconstitutional Bill," Wall Street Journal, April 6, 2001.

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