A pointless provision passed two decades ago makes campaign season even more insufferable.
A pointless provision passed two decades ago makes campaign season even more insufferable.
“I think that [passing this bill] would have the very beneficial effect of making candidates think twice before hurling accusations that perhaps are exaggerated or unfounded against an opponent. I believe it would help elevate the political debate, and it would help curb some of the egregious negative ads that offend all of us. . . . [The bill] will help improve the quality of our campaigns.”
— Senator Susan Collins, supporting the McCain-Feingold campaign-finance-reform bill, 2002“Birdbrain doesn’t have the TALENT or TEMPERAMENT to do the job. MAKE AMERICA GREAT AGAIN!”
— Former president Donald Trump, assessing primary opponent Nikki Haley’s presidential prospects, 2023
I n 2002, Congress was intensely focused on regulating the “tenor” of campaign speech. Senators and representatives supporting the Bipartisan Campaign Reform Act (known as “McCain-Feingold”) believed they could legally impose decorum, turning campaign rhetoric up or down like the volume on a car radio.
As if it were a Boeing plane in mid flight, much of the BCRA has fallen apart. In case after case, the U.S. Supreme Court has mercifully dismantled the law’s attempted micromanagement of the timing and content of political speech, recognizing that campaign messaging is the type of speech that should be protected the most.
But the Supremes have let stand the most useless and obnoxious provision of the law, the section that requires candidates to say their name, provide a photo of themselves, and declare “I approve this message” in every campaign ad. It is pointless, annoying, and above all, unconstitutional.
The original bill didn’t have a so-called stand-by-your-ad provision. That came about via an amendment offered by Collins (R., Maine) and Senator Ron Wyden (D., Ore.). It was left off the original bill for a reason: McCain-Feingold was ostensibly about reducing corruption by limiting how much money could be spent on political advertising and regulating when those advertisements could be run.
The Collins-Wyden initiative tackled something completely different, seeking to regulate the negative tone of the ads themselves. By making candidates vouch for what they say in a commercial, we could avoid “electioneering that has no more depth or substance than a snack food commercial,” boasted then–Senator John Kerry (D., Mass.)
For evidence on how this effort is going two decades later, one need only reflect on the incisive political mind of Donald Trump himself, who declared in 2022 that “Wacky Susan Collins” is “absolutely atrocious.” Perhaps in 2002 Collins envisioned a utopia of rhetorical civility in which a male presidential candidate wouldn’t cast his eye upon the visage of a female opponent and say, “Look at that face! Would anyone vote for that? Can you imagine that, the face of our next president?”
To borrow from Thomas E. Dewey, just as “you can’t shoot an idea with a gun,” you also can’t micromanage politicians’ manners by passing more laws — especially when their popularity swells the more outrageous they become. And yet the law still swims in the naïve belief that decorum can be regulated in a populace that demands less of it.
Not only has the “stand by your ad” law done nothing to stem the caustic nature of election communications, it is hopelessly outdated, since it didn’t adequately predict the way technology would change in the near future. For instance, the law regulates only television and radio ads, thus leaving internet-based videos largely untouched.
In 2002, TV and radio were king; in Wyden’s speech supporting his amendment, he specifically mentions those two media as the reason the new law was necessary. Wyden noted that in a candidate debate, if someone said something untoward about his opponent, the charge could be immediately answered — but rebutting a charge made in a TV or radio ad is far more difficult, because it would cost money and time.
Well, social media have fixed that problem. Videos uploaded by campaigns to X (formerly Twitter), YouTube, Facebook, Instagram, or TikTok are exempt from McCain-Feingold and don’t require the verbal affirmation. Candidates can say pretty much whatever they want online, and their opponents can respond immediately. For instance, when Trump suggested that Nikki Haley isn’t eligible to be president because her parents were born in India, we didn’t need a coda explaining that Trump supports the message. He posted it — of course he does.
And, of course, beyond paid ads, an untold number of print, audio, and video outlets outside the archaic BCRA framework are available to candidates to deliver their message. Good luck regulating candidates who, for instance, go on “Bubba von Insurrection’s Ivermectin Hour” podcast and spout nonsense for 60 minutes.
Yet despite terrestrial TV and radio being antiquated ways of messaging, ads that run on those platforms still need the “I approve this message” affirmation. It’s as if Congress is eternally concerned about a politically unsanitary candidate being elected in 2004.
What Wyden and Collins did two decades ago was essentially hijack four to five seconds of each campaign ad to signal their own rhetorical virtue. The bill not only required a candidate to say “I approved this message” in his or her own voice, it required an “unobscured, full-screen” photo of the candidate. In doing so, lawmakers immediately added “film director” to their résumés. The floor is yours, Senator Spielberg.
Unfortunately, in McConnell v. FEC (2005), the Supreme Court upheld the stand-by-your-ad provision, with Chief Justice William Rehnquist saying the framework “is valid as amended by BCRA § 311’s amendments other than the inclusion of electioneering communications.” Only Justice Clarence Thomas deemed stand-by-your-ad unconstitutional, arguing in favor of protecting anonymous political speech.
Supporters of the law say that the government adds disclosure requirements to all sorts of advertisements, so why not campaign ads? Just think of the scroll of possible side effects at the end of prescription-drug ads. But that information differs in terms of the potential damage that it’s meant to prevent. If you fail to take that drug only as directed, you could end up growing trout-like flippers. The worst thing that can happen when you watch an obnoxious political ad is that you will tire of rolling your eyes.
It was immediately obvious how awkward the new verbal affirmation would be. Sure, maybe the affirmation made some sense for negative ads, requiring a candidate to back up whatever attack he was leveling. But it made no sense for positive ads, forcing a candidate to say she approves of someone else saying something nice about her. “Oh, you approve of a factory worker thanking you for bringing jobs to the valley? You don’t say!”
And this needless government intrusion cuts into the time a candidate can use for his constitutionally protected political speech. If it takes five seconds to repeat the affirmation, that’s 17 percent of a 30-second ad that has been stolen by Congress for no good reason. It reduces the supply of political speech during a campaign cycle in a hapless effort to enforce decorum.
The law represents prior restraint on political speech; candidates are less likely to say what they really think or provide negative information to voters, even if that information would be valuable in making decisions in the voting booth. In the interest of sanitizing races (an endeavor that did not interest the Founding Fathers), Congress wants candidates to withhold damaging information. And, of course, that negative information would be most threatening to incumbents, who already have an enormous advantage.
Further, on a broader scale, it was the entire McCain-Feingold framework that contributed to the stupidity of today’s politics, pushing “hard” contributions made to political parties out into unregulated “dark money” outfits that often say things detached from reality. The more ridiculous these PACs are, the more money they have to disseminate lunacy, which helps them raise even more money.
The Supreme Court has done a wonderful job nuking the Death Star of McCain-Feingold from orbit, but one mission still remains: Recognize the needless infringement on political speech that is the law’s stand-by-your-ad provision. We are 20 years into this experiment, and it has yielded no results other than to confirm government’s control over political speech. It is a thickheaded idea whose time has never come and further proof that there is no terrible thing that the government can’t make even worse.
Kill the Bipartisan Campaign Reform Act. I approve this message.