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For McCain, First Amendment runs 2nd to campaign reform

By Tony Mauro
First Amendment Center legal correspondent

One in a series of articles on the First Amendment record and views of 2008 presidential candidates.

In April 2006, when Don Imus still roamed the airwaves, he asked Sen. John McCain, R-Ariz., about the charge that his campaign-finance legislation violated the First Amendment.

McCain’s response was revealing. “I would rather have a clean government than one where quote 'First Amendment rights' are being respected that has become corrupt,” McCain said. “If I had my choice, I’d rather have the clean government.”

Relegating the First Amendment to second place — and surrounding it with “air quotes” to boot — led conservative columnist George Will to wonder, “If on Jan. 20, 2009, he were to swear to defend the Constitution, would he be thinking that the oath refers only to ‘the quote Constitution’? And what would that mean?”

The answer to that question is not certain, but McCain if elected would come to the White House with a record of giving the First Amendment lesser priority in pursuit of other goals, ranging from campaign finance to protecting the American flag.

“He has an anti-First Amendment conception of the government, and he’s not done,” says James Bopp Jr., general counsel for the James Madison Center for Free Speech, and leading legal strategist in opposition to the Bipartisan Campaign Reform Act. That 2002 law was sponsored by McCain and Sen. Russ Feingold, D-Wis.

Others are more accepting of McCain’s views. “I think Senator McCain views the potential for corruption of government officials from large campaign contributions and spending as so great that it justifies some limits on the role of money in politics,” says Rick Hasen, election-law expert at Loyola Law School in Los Angeles. “He views such limits as consistent with his interpretation of the First Amendment.”

The McCain-Feingold legislation came under broad First Amendment attack for provisions that, by restricting the flow of money in political campaigns, restricted core political speech in the process. So-called “soft money,” donated outside campaign regulations, was banned altogether, and certain kinds of political advertising, paid for by direct corporate or union funds, were also prohibited during key periods before elections.

In his Senate-floor speech introducing the legislation, McCain made only glancing reference to First Amendment concerns. “Some will argue that the First Amendment of the Constitution renders unlawful any restrictions on the right of anyone to raise unlimited amounts of money for political campaigns. Mr. President, which drafter of the Constitution believed or anticipated that the First Amendment would be exercised in political campaigns by the relatively few at the expense of the many?”

But President George W. Bush, even as he signed the legislation, saw constitutional problems with it, and it was quickly challenged in court. In the 2003 decision McConnell v. Federal Election Commission, the Supreme Court upheld almost all of it. But after further litigation and a change in the composition of the Court, the advertising ban was found constitutionally deficient, at least as applied to the advertising at issue.

“Enough is enough,” wrote Chief Justice John Roberts Jr. in Federal Election Commission v. Wisconsin Right to Life last June. To regulate such advertising in the same way that campaign contributions can be restricted, Roberts added, “is to ignore their value as political speech.” The ads, which would have run before the 2004 elections, attacked unnamed senators for filibustering President Bush’s judicial nominees, and urged listeners to contact their senators about the issue — including Sen. Feingold, who was up for re-election. Because of that fact, the ads were prohibited under the McCain-Feingold law.

McCain filed a brief in the case, arguing that because Wisconsin Right to Life had alternative ways of getting its message to the public, the restriction on its pre-election advertising posed restrictions on free-speech rights that were “limited and tolerable in view of the compelling governmental interest at stake.”

Bopp also points out that McCain’s brief acknowledges that the Wisconsin group’s ads criticized incumbents for their position on an important issues, “which goes right to the heart of the First Amendment.” Bopp continues, “McCain and his allies are trying to prevent people from criticizing them” — a notion that would have offended the framers of the Constitution, in Bopp’s view.

And McCain’s censorious stances persist, Bopp says. In January 2007, McCain introduced legislation to cut off the growth of so-called “527” committees, named after the section of the Internal Revenue Code that allows them. These committees raised millions of dollars in soft money in the 2004 presidential election.

Despite his passion for campaign-finance reform, McCain has decided to turn down government matching funds for the primary to free him to spend more money as he prepares for a general election contest, the Associated Press has reported. McCain, who as of February 2008 appears headed to win the Republican presidential nomination, had asked to participate in the public system last summer when his campaign, his fundraising and his poll numbers hit a low point that threatened to unravel his candidacy.

Net filtering, other issues
In his 20-year Senate career, McCain has taken stands on numerous other First Amendment issues, often against the First Amendment interest. The American Civil Liberties Union’s lifetime rating of his votes on civil liberties legislation — including many non-First Amendment issues — is 26%.

A bill McCain introduced was enacted in 2000 as the Children’s Internet Protection Act, requiring schools and libraries that receive federal funds to install filtering software on computers to block access to material that is obscene or deemed harmful to minors. The American Library Association challenged the law on First Amendment grounds, but in June 2003, the Supreme Court upheld its constitutionality.

As chairman of the Senate Commerce Committee, McCain has introduced or supported several bills restricting broadcasters. He called for increasing fines for indecent radio broadcasts, and held hearings after Janet Jackson’s Super Bowl “wardrobe malfunction” in 2004. McCain introduced legislation that would require broadcasters to devote two hours a week of air time to “candidate-centered” programming in the weeks before elections.

McCain has also been a consistent supporter of a flag-desecration amendment, which would amend the First Amendment to allow Congress to pass legislation prohibiting the desecration of the American flag.

On religious freedom, McCain in 2006 gave an expansive speech before the Seventh-day Adventist Church's annual religious-liberty dinner. In it, he said, “Choosing one’s faith is the most personal of choices, a matter of individual conscience. That is why we cherish it as part of our Bill of Rights. That is why Franklin Roosevelt listed as one of his four freedoms the right of everyone to worship God in his own way, everywhere in the world. And that is why people fleeing religious persecution continue to find safety in our country. All people must be free to worship as they please, or not to worship at all. It is a simple truth: There is no freedom without the freedom of religion.”

In an interview published Sept. 29, 2007, with Beliefnet, a multi-denominational Web site that covers religion and spirituality, the Republican presidential hopeful was asked if a Muslim candidate could be a good president.

“I just have to say in all candor that since this nation was founded primarily on Christian principles … personally, I prefer someone who I know who has a solid grounding in my faith,” McCain said. “But that doesn’t mean that I’m sure that someone who is Muslim would not make a good president.”

McCain was asked whether he thinks the U.S. Constitution established a Christian nation, which 55% of Americans in the recent State of the First Amendment survey said they believed.

“I would probably have to say yes, that the Constitution established the United States of America as a Christian nation,” he said. “But I say that in the broadest sense … . We welcome the poor, the tired, the huddled masses. But when they come here they know that they are in a nation founded on Christian principles.”

The Arizona senator also discussed presidential candidate Mitt Romney’s Mormonism, saying he respected the Mormon religion and did not consider it a disqualifying factor for the presidency.

Lydia Hailman King contributed to this report.

Updated in 2008


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