Some years ago, back when McCain-Feingold was new, I noted that it had been sold much like a 19th-century patent medicine: “It’s good for what ails ya.” Think campaigns are too long? McCain-Feingold. Too negative? McCain-Feingold. Special interests too powerful? McCain-Feingold. Don’t like the candidates? McCain-Feingold. And so on.
Indeed, McCain-Feingold — with its limitations on spending money to advertise in the days close to an election, its restrictions on funds for party building, and its ridiculous requirement that candidates devote roughly 10 percent of each ad to explaining that “I approve this message” — like the Federal Election Campaign Act (“FECA”) that it amended, failed miserably to accomplish any of these goals. It’s odd that anyone ever thought it would; after all, generally speaking, attempting to limit political speech is not usually considered a healthy thing in a democracy.
Within just a few years, the Supreme Court and lower federal courts were rolling back not merely McCain-Feingold, but portions of FECA. Probably the two most important decisions were Citizens United v. Federal Election Commission, which held that corporations and unions could spend money independently on political speech; and SpeechNow.org v. Federal Election Commission, a D.C. Circuit Court of Appeals decision, not appealed by the FEC, that held that individuals and others could combine their funds to engage in independent speech. Although campaigns remain, in many ways, more heavily regulated than at any time in U.S. history prior to 1974, the results of the court-ordered deregulation since 2009 have been quite good: The elections of 2010 saw more competitive seats than any election within most Americans’ memory; the campaigns were also the most issue-oriented in a generation; turnout was up, and is expected to be up again this year; Americans are having the most serious debate about the course of the nation’s politics since the debate over civil rights 50 years ago (before FECA was passed, we might note).
But the New York Times editorial page is not about to greet this with equanimity. Rather, the Times is, how should we put it? Freaking out. Just as McCain-Feingold was the elixir of good campaigns, its demise is allegedly responsible for terrible, terrible things.
So this week, the Old Gray Lady’s editorial page cries out about “an unrelenting arctic blast of campaign ads stunning in volume and ferocity.” If it strikes you as odd that a newspaper would be concerned about a lot of political speech, you just don’t read the Times, or perhaps don’t understand its vested interest in limiting the speech of others. What, exactly, does the Times see as the problem?
Well, mainly, it’s that the campaign is just too rowdy. Meeting its burden of proof by claiming that some undetermined number of unnamed “residents” supposedly “say they have never seen anything like the constant negativity,” the Times assures us that the end of democracy is just around the corner. The Times notes with concern that “only a third” of ad dollars are “spent by the candidates themselves.” The Times refers to the groups of citizens who have the effrontery to speak out directly about candidates as “septic tanks.”
For example, one ad actually says, “Rick Perry is a blind, bald, toothless man who wants to start a war with France.” Another says that “Newt Gingrich is a hideous hermaphroditic character.” Yet another says that “if Ron Paul wins, rape, adultery and incest will be openly practiced. Are you prepared to see your dwellings in flames, female chastity violated?” No, wait a minute. I’m sorry, those comments were actually about John Adams and Thomas Jefferson, from the campaign of 1800.
No, things are now much worse. The Times is worked up because one ad actually says that “Mr. Gingrich and Rick Perry [are] ‘too liberal on immigration, [and have] too much baggage on ethics.’” Another ad, moans the Times, “urg[es] viewers not to let ‘the liberal Republican establishment pick our candidate.’” Really — those are the two examples the Times provides of the campaign being “stunning in its ferocity.” Oh, the horror of it all! Don’t let your children near the TV.
Of course, all this blather is nothing new. In 2010, Anderson Cooper told us that “candidates have taken dirty to a whole new level.” Another CNN anchor intoned that “some political watchers are saying this could be the most nasty, negative political season of all time.”
Indeed, the Times itself always says this. As a Times headline blared exactly four years before the latest Times editorial, “Bickering and Negative Ads in Countdown to Caucuses.” And they said more or less the same thing in 2004 and in 2000 and in 1996 and in — well, you get the idea. Meanwhile, a study by researchers at the University of Missouri has found that the New York Times is more likely to be negative in its coverage than are the candidates themselves — sort of like those nasty independent groups that the Times decries. In fact, studies have long shown that ads are more effective at accurately informing viewers about candidates’ positions than is news coverage, which tends to focus on “horse race” coverage.
So let’s sum up: The Times is concerned that 1) there is more political speech than there would be if not for the Supreme Court decision in Citizens United and the appeals-court decision in SpeechNow.org v. FEC; 2) groups of citizens are running their own ads, rather than relying solely on the candidates to run ads; 3) the ads are saying awful things, accusing candidates of “being too liberal on immigration,” or having “ethics baggage,” something the Times would never discuss, except in its news stories on Newt Gingrich’s “ethics” “baggage” on November 28, December 8, December 9, December 14, and December 31; 4) stories about a candidate’s ethics or positions on immigration should be off limits in an “accountable” campaign; and 5) all this citizen speech informing voters about various candidates’ positions, ethics, and endorsements, coming not only from the candidates but from other sources, can be blamed on Citizens United and SpeechNow.org.
Well, I guess that settles that.
— Bradley Smith is the Blackmore/Nault Professor of Law at Capital University Law School, chairman of the Center for Competitive Politics, and the former chairman of the Federal Election Commission.